Commencement of Police Investigations

The point at which investigations begin

 Important because witness statements made in course of investigations generally not admissible in court
(s 259 of CPC, list of exceptions provided)
 Test to determine whether police investigations have commenced:
o Once the suspicion of a police officer has been aroused to such an extent as to cause him to
proceed to any action (Lim Kim Chuan v PP )
 i.e. when mere interest  suspicion.
o Ng Yan Yee v PP
 Ultimately a question on fact. On the facts, when the policeman told his superior about
a tape recording of a bribe attempt, this was a discussion with his superior and not
commencement of a police investigation.

First Information Report (FIR)

 S 14(1), CPC: Defined as “information first received at a police station about an offence”
o “Police station” includes the Police Radio Division (s 2)—i.e. “999 calls” also FIR
o Under the new s 15, FIR need not only be made to police officers, and can be made to
authorised persons who are not police officers
 In practice, investigations usually commence upon the receipt by the police of a FIR
 PROCEDURE upon receipt of the FIR.
O [1] Where information received is in writing.
 s 14(2): Officer to note the date and time of receipt, name and address of the person
who gave the information, and if signed, file it as a report.
O [2] Where information received is oral (and practicable to reduce it to writing).
 ss 14(3) and (4): Officer to ensure that the particulars in s 14(3), are recorded in a
report and that the informant sign it.
O [3] Where information received is oral (but impracticable to reduce it to writing immediately).
 s 14(5)(a): Make a note of the information.
 s 14(5)(b): If it relates to an arrestable offence, must cause a fuller investigation
statement under s 22, CPC to be recorded as soon as possible.
O [4] Note: Where information is received by an authorised person.
 s 15(1): Person shall immediately record the information in a report and communicate
that report to a police officer
 EVIDENTIAL VALUE
o s 260(1), CPC: A CTC (by a police officer of/above the rank of inspector) is admissible as
evidence of original information, date, time, and place at which it was given – i.e. there is no
need to call the informant to the stand.
 It is not admissible for the purpose of proving that the facts therein are correct – i.e.
not substantive evidence of its contents (Balachandran v PP).
 It can be used as a previous statement for contradiction/corroboration (PP v Foong
Chee Cheong, Tan Cheng Kooi v PP).
 An FIR can be of special significance if the prosecution’s case depends
primarily/singularity on it.
o Absence of FIR
 Adverse inference must be raised under s 116(g), EA that failure to produce FIR meant
that FIR was unfavourable to Prosecution’s case (Tan Cheng Kooi v PP)

1
  Where evidence of an offence comes entirely from a complainant, absence of
an FIR deprives accused of an opportunity to cross-examine his accuser.
 Absence of an FIR does not itself constitute a ground for throwing out a case ipso facto,
but it casts a cloud of suspicion and tends to weaken P’s case (PP v Foong Chee Cheong)
o Discrepancies between FIR and complainant’s testimony.
 Not all discrepancies are “material” discrepancies.
 FIR need not contain entire case for the prosecution. Its main purpose is to
give information of a cognisable offence, and thus, does not require elaborate
details of the alleged offence (Tan Pin Seng v PP )
 Circumstances in which the FIR was lodged have to be borne in mind when considering
any discrepancies between the FIR and the complainant’s testimony.
 An omission in a report hurried lodged under the pressure of events should
not have the same significance as one in a report lodged after cool calculation
(Herchun Singh v PP)
 “Material” discrepancies – what happens then?
 Then FIR is relevant and admissible to impeach the credibility of the witness as
a previous inconsistent statement (Tan Pin Seng v PP)
 Where offence disclosed in FIR is entirely inconsistent with the charge, the credibility of
the complainant can be affected (Sahadevan s/o Gundan v PP)
 Accused person’s right to the FIR.
O The accused is entitled to apply for a copy of the FIR so that he can be in a position to defend
himself (Anthony Gomez v Ketua Police Daerah Kuantan, PP v Mohamed Musa bin Amarullah)
O C.f. accused person’s right to statements of witnesses recorded by the police..

Police powers of investigation

Powers to Compel the Production of Documents or Things

 s 20, CPC empowers the police to order the production of documents or other things considered
“necessary or desirable for any investigation, inquiry, trial or proceeding”.
o s 20(2): Document includes customer information held by a financial institution,
o s 20(2)(a): Such orders must be made by police officers of/above the rank of inspector.
o s 20(2)(b): Such orders can also require the police to require the financial institution to monitor
the accounts of a customer and provide information relating to the account transactions.
 Specific documents to be produced must be enumerated.
o SM Summit Holdings v PP: Fishing exhibition is prohibited under the former s 58, CPC.
 If police has reason to believe that person may not comply:
o If arrestable– Police can search for the document or thing w/o a search warrant: s 34(1)
o If non-arresetable – police can apply to court, and court can issue a search warrant: s 24(1)
 Omission to produce constitutes an offence under s 175, Penal Code.

Powers of Search and Seizure

A. SEARCH WARRANTS
 General power of any court.
o s 24(1)(c): Any court may issue a search warrant if court considers the purpose of justice or of
any investigation, inquiry, trial or other proceeding will be served.
o s 24(1)(a): Any court may issue a search warrant if court has reason to believe person would not
comply with order/summons to produce documents/things as required
o s 24(1)(b): If it is not known who possesses that document/thing.

2
  Specific powers
o S 25: To issue specific warrants to search premises and seize stolen property, forged
documents, counterfeit stamps/coins, etc.
o S 30: Specific warrants for person wrongfully confined
 Form of search warrant – s 26, CPC.
o Search warrant issued must be in writing bearing the seal of the court and signed by a
Magistrate or District Judge, or in the case of the High Court, by a Judge of the High Court or
by the Registrar of the Supreme Court
o Ordinarily issued to the Commissioner of Police
 Execution of search warrant.
o Safeguards exist (see s 29, CPC, which provides the procedure in which a person granted a
search warrant must conduct the search) to protect interests of occupier of place searched
 Must be done at the specified time/ PO must identify himself to Police officer/ Give
copy of warrant if requested

B. SEARCHES WITHOUT WARRANTS

 Search of places
o Searching a place for stolen pty
 s 32, CPC: Police officer of/above the rank of sergeant can search a place which he
has reasonable cause to suspect that it contains stolen pty, if he has good grounds
to believe that the pty is likely to be removed by reason of delay.
o Summary search
 s 33, CPC: Any police officer who has the authorisation by Commissioner of Police
can search premises which are/for the past 12 months have been occupied by
persons convicted for receiving stolen property, or harbouring thieves, etc, for the
stolen property.
o Searching a place in an arrestable case
 s 34, CPC: Police officer investigating an arrestable offence can search a place for
any document/thing “necessary for his investigation” if he has reason to believe
that the suspect would not produce it, or it is likely to be removed, or it is not even
known who possesses it.
o Searching a place entered by person sought to be arrested.
 s 77, CPC: Police officer with authority to arrest (or someone acting under an arrest
warrant) can search any place if he has reason to believe that the person to be
arrested is inside.
 s 77(4) provides for the power to break doors or windows or use any other
reasonable means to gain entry)
o Searching premises of person arrested.
 s 78(2), CPC: Police officer investigating an arrestable offence can search premises
of persons under arrest for the offence, or reasonably believed to be connected
with the offence.

C. SEARCH OF PERSONS
 Search of persons without bail.
o s 78(1), CPC: Police officer may search a person arrested for a non-bailable offence or for a
bailable offence but unable to furnish bail.
 Search for name and address.
o s 80, CPC: Any person who is lawfully in custody and unable to give a reasonable account of
himself may be searched to find out his name or address
 Search of persons in places searched.

3
 o s 81 CPC: Where a place is lawfully searched, every person found in the place may be
detained and if the thing is sought is capable of being concealed on his person, he may be
searched for it, but it must be in the presence of a police officer of/above the rank of
sergeant.
 Searching of a woman: s 83, CPC –shall be by another woman.

Powers of seizure
 General power to seize property.
o s 35(1), CPC: Police officer may seize, or prohibit disposal of or dealing in, any property:
 (a) In respect of which an offence is suspect to have been committed;
 (b) Which is suspected to have been used/intended to be used to commit offence; or
 (c) Which is suspected to constitute evidence of the offence.
o s 35(2), CPC: Power to order financial institution to delivery or freeze property.
o ss 35(7) and (8), CPC: Court may order the release of the seized property or part thereof.
 Definition of “property”.
o s 35(9)(a), CPC: Property originally in possession or under the control of any person.
o s 35(9)(b), CPC: Property in which such property has been converted/exchanged, or anything
acquired by such conversion/exchange.
o Interest of other earnings on the above 2 definitions.
 Admissibility of illegally obtained evidence
o Generally admissible, unless PE > PV (Law Society v Tan Guat Neo Phyllis)
 Although HC decision, it is a Court of 3 Judges decision and is important.
o C.f. Muhammad bin Kadar v PP – stricter approach?
 Where a statement was recorded by the police in breach of legal requirements, the
court would not be slow to exclude the statement on the basis that its prejudicial effect
> exceeded its probative value.
 Prosecution bears the burden of proving otherwise.

Police powers of arrest

What amounts to an arrest?

 Under s 75, CPC, an arrest takes place by touching or confining the body of a person, unless that person
submits to custody by word or action.
 The key is there must be “the apprehension, restraint or deprivation of a person’s liberty” by words or
conduct (Chee Siok Chin v MHA
o PP v Shee Chin Wah: Can be actual or constructive arrest
 Whether a person is actually under arrest is a question of fact to be decided according
to the circumstances of each case.
 Here: D was under arrest, raiding officer believed him to be under arrest.
 D had been found in possession of 12 rolls of cigarettes suspected to contain cannabis,
but police did not want to hamper his movements as his assistance was still required
o Zainal bin Kuning v Chan Sin Mian Michael
 D was woken up early in morning by POs in his home, asked to accompany him to CID.
 Lack of notice and lack of choice, threat that something would happen to him if he
refused  Arrest
o PP v David Ackowuah Bonsu: No evidence to suggest constructive/actual arrest
 No drugs had been recovered from folder; no reasonable suspicion of commission of
any offence

4
  Having Accused escorted by an officer while on the way to Customs Office, was merely
a “prudent precautionary measure”

How to arrest / how much force can be used?

 s 75(1): Must touch or confine the body of person unless he submits to arrest by word/action.
 s 75(2): If the person forcibly resists or tries to evade arrest, the police officer or other person may use all
reasonable means necessary to make the arrest.
 S 76: The person arrested must not be restrained more than is necessary to prevent his escape.

When arrests can be made and by whom? CPC provides for 3 different types of arrest
 [1] ARREST WITHOUT WARRANT – s 64(1)(a), CPC (the provision is non-exhaustive):
o Any person who has been concerned in an arrestable offence; or is reasonably suspected of
having been involved in one, or against whom reasonable complaint has been made or credible
information received of having been involved in an arrestable offence.
 “Reasonably suspected”
 Must be based on definite facts, or founded on some definite fact tending to
throw suspicion on the accused (Zainal bin Kuning v Michael Chan)
 Factual basis for the reasonable suspicion can either be within the police
officer’s knowledge, or reported to him (Chee Siok Chin v MHA)
 Prima facie proof consists only of admissible evidence, but a reasonable
suspicion can take into account matters that could not be put into evidence
(Shaaban v Chong Fook Kam)
 “Reasonable complaint”
 Objective test for court to decide on evidence before it (Tan Kay Teck v AG)
 “Credible information”
 Source of information should be reliable. On the facts, the informant had
previously proved to be reliable and past information had led to an arrest and
successful prosecution (Hashim bin Saud v Yahya)
o See more in s 64, CPC
o Even in cases of non-arrestable offences, arrest can be made on
 Refusal to give name and residence to police officer (s 65(1), CPC), or
 If gives residential address outside SG or name/address which polie officer has resaon
to believe is false (s 65(2), CPC).
o Also, arrest can be made without a warrant if the legislation providing for the offence specifically
contains such a power – e.g. s 25, Misuse of Drugs Act.

Procedure upon arrest without warrant

o Cannot be detained more than 48 hours and shall without unnecessary delay be sent before a
Magistrate’s Court: ss 67 and 68, CPC
o If there is insufficient evidence to charge the accused at this point, accused may have to be
released on station or police bail while further investigations are carried out.
o Accused is physically brought before a Mention Court for a charge to be tendered against him.
 Assignment of case number – e.g. DAC 3546/2013, MAC 2246/2013, CHC 16/2013.
 Several scenarios:
 Adjourned – prosecution can ask for adjournment to complete investigation,
or the accused may need time to find a lawyer.
 Accused wishes to PG – can be dealt with immediately, or at further mention.
 Accused claims trial – CCDC where applicable, or PTC.
 Provisions on bail apply (see ss 92 – 95, CPC).

 [2] ARREST WITH WARRANT

5
 o In all other cases, a warrant for arrest must be obtained.
o Fourth column to First Schedule, CPC – as to whether warrant/ summons shhall ordinarily issue
in the first instance
 But note s 120, CPC: can issue warrant for arrest in a case in which court is empowered
to issue a summons for appearance of a person if
 (a) Court has reason to believe accused has absconded or will not obey the
summons or (b) accused fails to appear and summons was duly served in time
and no reasonable excuse is offered for failure to appear
o Form of the warrant and procedures that must be followed are found in ss 69 – 74, CPC
 E.g. s 72: court may endorse on warrant security to be taken (i.e. bail)

Procedure upon arrest with warrant

o S 74, CPC: arrested person must be brought to court without unnecessary delay

 [3] PRIVATE ARREST BY CITIZEN – closely circumscribed and exists only in 2 situations.
(i) ss 66(1), CPC: Any private person may arrest any person who, in his view or presence, commits
an arrestable non-bailable offence.
 “In his view”.
 As long as private person is in such close proximity that he can be certain that
an offence has been committed, the right vests in him, notwithstanding that
he did not witness the commission of offence (Chee Siok Chin v MHA)
 “Without necessary delay” – means “as soon as practicable”.
(ii) s 66(6), CPC: Victim of an offence or related person (employee, person authorised or person
acting in aid of the victim, referred to in para c) can arrest the offender if:
 His name and address are unknown;
 He gives a residential address outside Singapore; or
 He gives a name or address where there is reason to believe it is false.

Procedure upon arrest by citizen

o s 66(2), CPC: Must hand over the offender to the police without necessary delay

Rights upon arrest

 Article 9(3), Constitution: Where a person is arrested, he shall be informed as soon as may be of the
grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.
 [1] “Informed as soon as may be of the grounds of his arrest”.
o “As soon as may be” –question of fact (several hours in Aminah v Superintendent of Prisons)
o How much to inform?
 Sufficient if informed in general terms of [1] what power he is being arrested under,
and [2] grounds of his arrest (Choong Kim Loy v Timbalan Menteri Dalam Negeri) –no
need for him to be told in detail or in strict legal terminology.
 [2] Right to “consult and be defended by legal practitioner of his choice”.
o Right does not arise immediately upon arrest –but only arises “within a reasonable time after
arrest” (Jasbir Singh v PP)
 Must be balanced against the duty of the police to protect the public and to be able to
carry out effective investigations
 Question of fact in each case.
 E.g. 2 weeks non-access to counsel justifiable in Jasbir Singh v PP
 E.g. 19 days after arrest reasonable; no requirement that accused must have
access to counsel before giving statements – Leong Siew Chor v PP

6
  No legal requirement that police permit counsel to be present during interviews with
the arrested person while investigations were being carried out (CA in James Raj v PP).

o No additional right to be informed of one’s right to counsel (Rajeevan Edakalavan v PP),

 Also no additional right to contact 3rd parties (e.g. friends and family) to enquire about
the right to counsel (Sun Hongyu v PP)
o Right to counsel is not an unqualified right
 Accused person is only entitled to be represented by counsel of his choice if the counsel
is similarly willing and able to represent him (Balasundaram v PP)

Unlawful arrest
 Generally, the illegality of the arrest does not affect the court’s jurisdiction to try the accused whose
remedies lies elsewhere (Saminathan v PP)
o [1] Tort of false imprisonment or malicious prosecution (Zainal bin Kuning v Michael Chan)
o [2] Judicial review of the police decision to arrest
 The decision to arrest is reviewable on the same grounds as any other exercise of
discretionary power (Chee Siok Chin v MHA)
o [3] Writ of habeas corpus to secure liberty under s 417, CPC
o [4] Compensation orders against prosecution/complainant/ informant (frivolous or vexatious
prosecutions): s 359 CPC: the max amount that can be ordered is $10,000
 If the arrest is unlawful, the accused would be entitled to struggle against the arresting officer because
he would be resisting an illegal or unjustifiable use of force towards him (PP v Kok Khee)

Identification evidence & identification parades

Identification evidence
 Reliability of identification evidence under the Turnbull Guidelines.
o The guidelines laid down in R v Turnbull has been adopted and modified into the 3-step test in
Singapore in Heng Aik Ren Thomas v PP
 [1] Does case against accused depend wholly/substantially on correctness of
identification evidence?
 [2] If so, is the identification evidence of a good quality, taking into account the
circumstances of identification?
 [3] Where the quality of identification evidence is poor, is there supporting evidence of
identification to convince the court that there is no mistake in identification?
 If there is none, the judge should be mindful that the conviction which relies
on poor identification evidence might be unsafe.

Identification parades
 One way to get reliable identification evidence is to conduct an identification parade where a witness to
the offence identifies the accused as the one who committed the offence.
 When are identification parades necessary?
o Usually prudent to conduct when the witness has seen the commission of the crime, but the
accused person is not known to the witness before the occurrence of the incident (Awtar Singh
s/o Margar Singh (2000)).
o Ang Jwee Herng v PP (2001)
 In that case, court held identification in court of accused by witness was reliable i.e. no
ID parade needed.
 Non-exhaustive list of factors to consider whether identification of the accused by the
witness in court was reliable.

7
  Length of time the witness observed the accused – the longer the time, the
more reliable the dock identification even if no parade was carried out.
 Distance at which observation was made – shorter distance, more reliable.
 Presence of obstructions in the way of the observation.
 Number of times the witness saw the accused.
 Frequency with which the witness saw the accused.
 Presence of any special reasons for the witness to remember the accused.
 Presence of any material discrepancies between the description given by the
witness and the actual appearance of the accused.
 HOW are identification parades conducted?
o No legislative procedure, but practice has developed.
 Parade is held at the earliest opportunity.
 In a specially constructed room equipped with one-way mirror dividing the line-up
room and the viewing room.
 Line-up should be of sufficient numbers (at least 9 – 12 in PP v Ong Phee Hoon James).
 All persons in the line-up should appear similar, including attire (Lee Tiaw Chee v PP)
 Accused should be allowed to choose his position and may change it between
witnesses.
 Accused may object to any person being present and may comb his hair/ change attire.
 Identification ought to be absolutely independent.
 Only when line-up is ready for identification will the witness be escorted into the
viewing room for the identification to take place (Low Thim Fatt v PP)
 Witnesses should not assemble in the same room before the parade is carried out, as
this would give the witnesses an opportunity to fortify/correct their recollection of the
person to be identified (PP v Ong Poh Cheng)
 No assistance by photographs or any verbal/written description before/during the
identification (Ong Lai Kim v PP)
 Every circumstance connected with the parade to be recorded.
 There is no need for the same suspect to be identified by all witnesses, as long as the
court is satisfied (Ramakrishnan s/o Ramayan v PP)
 CONSEQUENCES of procedural defects.
o Not fatal – defects does not automatically render it inadmissible (Thirumalai Kumar v PP) and
only goes to the weight of the identification evidence (PP v Ong Phee Hoon James).
o Chan Sin v PP
 HELD: Central issue is the extent of prejudice or unfairness caused to the accused by
the procedural defects. Furthermore, if there is bad faith or “deliberate flouting” of
procedural requirements rather than mere inefficiency, the identification evidence will
probably not be relied upon.

(2) THE CHARGE

Power to charge
 Article 35(8) of Constitution and s 11 CPC provides Attorney-General the power, exercisable at his
discretion, to institute, conduct or discontinue any proceedings for any offence (i.e. complete control and
discretion)
o Sarjit Singh Rapati v PP: Courts do not have the liberty to amend the charges simply because
they may disagree with the manner in which the Prosecution has exercised its discretion
o Ramalingam Ravinthran v AG: Separation of powers requires the courts not to interfere with the
exercise of prosecutorial discretion unless it has been exercised unlawfully/ unconstitutionally
 If exercised unlawfully/ unconstitutionally, such exercise is judicially reviewable

8
Role of the charge
 Allegations must be positively and precisely stated so that the accused knows what the accusation
against him is, and what charge he has to meet (Viswanathan Ramachandran v PP)
Form of the charge
 Charge should state all essential ingredients of an offence to give the accused notice of the offence and a
chance to defend himself (Assathamby s/o Karupiah v PP)
 Form of the charge is set out in s 123, CPC:
o S 123(1): Offence must be stated
o S 123(2): Specific name of the offence can be stated
o S 123(3): Definition of the offence
o S 123(4): Provision of the law must be stated
o S 123(6): Previous convictions, for purposes of affecting punishment (enhanced punishment)
 Facts, date and place of the previous conviction should also be stated
Particulars of the charge
 S 124: Date/ time and place of alleged offence and person/ thing in respect of which it is committed
such at it would be reasonably sufficient to give the accused notice of what he is charged with
o S 124(2): For criminal breach of trust + criminal misappropriation of money and movable pty
 The gross sum involved in the offences, and dates btw which the offences are alleged to
have been committed (but shall not exceed 12 months)
o A charge in a complicated case must specify particulars of the acts (M Sathaiah s/o Muthiaiah
Pillay v R)
 Cannot merely mention the time/place/persons/crime
 S 125: Where particulars set out do not give adequate notice to the accused, then manner by which the
offence was allegedly committed should also be specified
o Lim Hong Yap v PP: ONLY if info provided still does not give adequate notice to the accused,
should the manner by which offence was committed be specified in the charge

Effect or errors or omission in the charge

 Errors and irregularities will not generally vitiate findings, sentences or orders unless there had been a
failure of justice and the accused was in fact misled by the error /omission in the charge.
o s 127, CPC: No error or omission in the charge (offence/ particulars) shall be regarded as
material unless the accused was in fact misled by that error or omission
 (See illustrations to s 127): e.g. A is charged with cheating B. How he cheated B is not
stated in the charge. There were many transactions between A and B and A had no
means of knowing to which of them the charge referred and offered no defence. The
court may infer from those facts that omitting to state how B was cheated was a
material error.
 Lim Chuan Huat v PP: The object behind the concern of whether an accused is misled by
errors in his charge is to safeguard the accused from being prejudiced in his defence. It
is only in situations where the accused have been so misled, that the errors are
considered material and go towards the validity of his charge.
o s 423, CPC: any judgment/ sentence/ order passed may not be reversed or altered on account of
error, omission or irregularity in the charge unless the error had caused a failure of justice
o Lim Chuan Huat v PP
 The phrase “various occasions” is ambiguous. Shed no light at all on the exact number
of occasions each appellant had allegedly caused hurt to the victim.
 However, ambiguous drafting of the charge did not mislead the accused as they knew
the case they had to meet and not hindered/ prejudiced by the form of their charges,,
hence errors were not material and did not affect the validity of charge. Charge still
valid.

9
Amendment of charge

Amendment before trial

 Article 35(8), Constitution: Attorney General has power, exercisable at his discretion, to conduct or
discontinue proceedings for any offence—complete control and discretion
 S11, CPC: Public prosecutors have all control and direction of criminal prosecutions
 Before charged in court, PP can amend at any time

Amendment during trial –with leave of court before judgment is given (s 128 CPC)
 Prosecution can apply to court for it to exercise its power under s128; requires leave of Court
 Trial Judge should exercise discretion to effect necessary amendments even if Prosecution did not apply
(PP v Tan Khoo Wan Iris)
o Discretion by judges to amend the charge should be exercised only “in a clear case, a president
or a magistrate ought to alter a charge to fit the proved facts”. The amendment must also not be
unfair to the accused.
 Chin Siong Kian v PP: Court highlighted that an amendment of a charge may be at any stage –generally
the earlier the better but it is at the close of the evidence for the prosecution that the Court is in the best
position to decide exactly what is the case which the accused is required to meet”
 Procedural safeguards when charge is altered/ new charge is framed
o S 128(2): New charge must be read and explained to the accused.
o S 129(1): Plea to be taken on new charge, and accused to state if he is ready to be tried.
 S 129(2) and (3): If accused is not ready, court must consider any reasons he gives, and
must determine if proceeding with trial immediately will prejudice him
 S 129(4): Court can direct new trial/ adjourn the current trial if proceeding immediately
is likely to cause prejudice to the parties
 S 130: If new charge requires the PP’s consent, trial not to proceed until such consent is
obtained
 S 131: Parties can recall witnesses.
 Overriding consideration is whether the amendment would cause injustice or prejudice to the accused –
depends on the facts of the case
o PP v Chan Heng Chye: Short adjournment, or allowing the defence to recall any witness will
offset such potential prejudice
o Sharom bin Ahmad v PP: Accused was not prejudiced because the trial judge explained to
accused the new charge, allowed them to recall witnesses, and even asked the defence lawyer if
he needed more time to prepare for the new charge.
o Oh Teh Hwa v PP: Amendment was not unfair to the accused because the judge had read and
explained the amended charge, and the accused was invited to recall witnesses, or call new
witnesses. Amendment did not even involve Prosecution adducing evidence of any new facts

Amendment by High Court / Court of Appeal in appellate capacity

 S 390(4): Appellate court may alter the charge (whether or not it attracts a higher punishment) when
hearing an appeal if satisfied that, based on the records before the court, there is sufficient evidence to
constitute a case which the accused has to answer
o S 390(6): After the appellate court has framed an altered charge, it must ask the accused if he
intends to offer a defence.
 When amendment should be granted? – Donohue Enilia v PP
o When no prejudice is caused to the accused

10
 o Must not affect the substance of the evidence from both the Prosecution and the Defence –
when the record of facts and the record of evidence support an amended charge
 Amendment applies when accused pleaded guilty to non-existent offences
o PP v Henry John William: Prosecution drafted charges that were defective and non-existent
offences. Appellant did not object to the proposed amendments  held: No injustice to the
accused or appellant. Amendment allowed.
 Where the HC decided to amend the charge, it may proceed to convict him upon the altered charge; or
remit the matter to the trial court for re-trial (if there are insufficient facts) (PP v Sinsar Trading)

Rule against Duplicity (1 charge, many offences) and Exceptions: Joinder

 STARTING PRINCIPLE: Generally, there should be a separate charge for each distinct offence and every
charge must be tried separately (s 132(1), CPC)
o s 132(2): Statutory exceptions
 ss 133 to 136, 138, 143, 144 and 145
 Charges to which accused PG or
 Charges which accused and PP consent to be TIC under s 148
o Rationale: Unfair for the accused, minimised risk of confusion, prejudice
 Lim Chuan Huat: Rationale for s 132 is for the fair trial for the accused, minimised risk
of confusion. Also, separate trials save the accused from being embarrassed in his
defence, prevent the court from being unduly influenced by different evidence
tendered against the accused on different charges.
 DUPLICITOUS CHARGE is a charge that alleges that the accused committed 2 or more distinct offense
o Generally charge involving distinct and separate offences usually curable under s 423 CPC if
(Chuan Hoe Engineering v PP) UNLESS:
 Each offence alleged could have been subject of separate charge and
 Tried together, and
 Accused not prejudiced, and
 No failure of justice was occasioned by the duplicity.
 However, where duplicity caused confusion in mind of trial judge such that he did not consider evidence
in respect of each alleged offence separately, failure of justice may be found to have occurred (See Yew
Poo v PP)

EXCEPTIONS TO THE RULE AGAINST DUPLICITY

 (1) Exceptions for individual i.e. joinder of charges (1 accused, multiple charges
o Issue is one trial for all charges or multiple trials for each charge?
o Basic principle is s 132(1): must be a separate charge for each distinct offence and every charge
must be tried separately –EXCEPTIONS
o S 133: When a person is accused of 2 or more offences, he may be charged with and tried at one
trial for any number of those offences if the offences form/are part of a series of offences of
same/similar character
 “Series” means at least 2 offences (R v Kray)
 Lee Kwang Peng v PP: different alleged victims of outrage of modesty
 The series of offences can be joined. No prejudice or embarrassment to the
accused was found.
 Joinder of capital and non-capital charges: Depends on facts and whether prejudice
 Yow Chee v PP: General rule is that a capital charge should not be joined with
a non-capital charge.
o However, here there was no prejudice to accused.

11
 o Further, nexus in terms of proximity in time and location and both the
offences also arose from the same set of facts.
o s 134: Where it is one series of acts connected so as to form the same transaction, 2 or more
offences are committed by the same person, he may be charged with and tried at one trial for
every such offence
 Factors for consideration of whether the acts were for the ‘same transaction’ include
(Nathan Tse v PP)
 Proximity of time;
 Unity of place
 Unity of purpose or design (key threshold)
 Continuity of action
 Note factors are not intended to be cumulative

o S 135: Acts constitute offence falling within 2 /more separate definitions of the law, then the
accused may be charged with and tried at one trial for each of those offences
 Illustration (g): A wrongfully strikes B with a cane.
 This act can be defined as: (a) VCH (s 323), or (b) Criminal force (s 352)
 A may be charged for both s 323 and s 352 and tried for both at same trial
o s 136: Acts form 1 offence but when combined form different offence – several acts of which
one/more than one would by itself/ themselves constitute an offence but when combined
constitute a different offence, the person accused may be charged with and tried at one trial for
the offence constituted by those acts when combined or for any offence constituted by any one
or more of those acts
 Illustration: A robs B, and in doing so voluntarily hurts B
 A may be charged and tried at 1 trial for:
o (a) VCH (s 323 PC)
o (b) Robbery (s 392 PC) and
o (c) Robbery with hurt (s 394 PC)
o s 308, CPC: Sentencing limits still apply notwithstanding joinder provisions
 s 308(1): Where anything which is an offence is made up of parts, any of which parts is
itself an offence, person who committed offence shall not be punished with the
punishment of more than one of such offences unless it is expressly provided
 Zeng Guoyuan v PP
o Question is whether it can be fairly said that several separate offences
have been committed or that all acts complained of are component
parts of but one offence or are so closely connected to form in reality
one offence (in latter case, s 308(1) would apply)
o S 308(1), CPC corresponds with s 134, CPC –basically one offence
made up of many parts
 s 308(2): person who committed offence shall not be punished with a more severe
punishment than court which tries him could award for any one of such offences.

12
  S 308(2)(a): Where anything is an offence falling within 2 or more separate
definitions of any law in force for the time being by which offences are defined
or punished (corresponds with s 135, CPC –where multiple offences are caused
by one set of facts); or
 S 308(2)(b): Several acts, of which one or more than one would by itself or
themselves constitute an offence, constitute when combined a different
offence (corresponds with s 136, CPC)
 Illustrations to s 308
 (a) A gives Z 50 strokes with a stick. Here A may have committed VCH to Z by
the whole beating, and also by each of the blows which make up the whole
beating. If A were liable to punishment for every blow, he might be imprisoned
for 50 years, one for each blow. But he is liable only to one punishment for the
whole beating
o Zeng Guoyan v PP: Illustration (a) is highlighting a case where events
are so closely connected that it cannot be fairly said that more than
one offence has occurred (not e.g. if 50 strokes are given over 50
days)
 (b) But if, while A is beating Z, Y interferes and A intentionally strikes Y, here,
as blow given to Y is no part of the act whereby A VCH to Z, A is liable to one
punishment for VCH to Z, and to another for the blow given to Y.
 (2) Exceptions (for more than 1 person) –joinder of defendants (2 or more accused)
o Issue: one trial for all accused, or separate trials for each accused?
o S 143: persons who may be charged and tried jointly
 (a) Persons accused of same offence
 (b) Persons accused of different offences in same transaction
 (c) Persons accused of 2 or more offences which form or are a part of a series of
offences of the same or a similar character;
 (d) Person (A) accused of an offence of theft, extortion, robbery, criminal
misappropriation, criminal breach of trust or cheating, and another person (b) accused
of receiving /retaining/assisting in disposal/concealment of the subject matter of that
offence;
 (e) Persons accused of offences under s 411 and 414 of the Penal Code, or either of
those sections, in respect of the same stolen property, the possession of which has
been transferred as a result of the original offence of theft, extortion, robbery, criminal
misappropriation, criminal breach of trust or cheating;
 (f) Person accused of any offence under Chapter XII of the Penal Code relating to a
counterfeit coin, and a person accused of any other offence under that Chapter relating
to the same coin;
 (g) Person accused of committing an offence and a person accused of abetment of or
attempt to commit that offence.
o s 144: joint trials for connected offences
 May be separately charged and tried together with any other person accused of
another offence under the same written law, if both offences arise from the same
series of acts, whether or not they form the same transaction.
 Different from s 143 because these are connected but do not form the same
transaction – e.g. members of opposing factors of an unlawful assembly.
o S 145(1)(b): joint trial with consent
 Court may try offences together at one trial or order a joint trial notwithstanding that it
cannot do so by virtue of ss 133, 134, 135, 136, 138, 143 or 144, if
 (a) In a case where an accused is charged with 2 or more offences, PP and the
accused consent to have all such offences tried together;

13
  (b) In a case where 2 or more persons are charged with separate offences, PP
and all such persons consent to a joint trial.
 But court shall not try offences together /order a joint trial in relation to a person who
had earlier given consent under that subsection if —
 (a) At the time when the consent is given, the person is not represented by an
advocate; and
 (b) At the time of the trial, that person objects to the court trying the offences
together or to the joint trial.
 (3) Joint charges
o Joint charge is a charge where 2 or more accused persons are named
o Generally, done under s 34 Penal Code
o Also, s 109 Penal Code (abetment by conspiracy) & s143 Penal Code (unlawful assembly)
o Conviction of abettor
 An abettor may still be convicted, even if the principal accused is not convicted.
 Illustration (a), S108, Penal Code: A instigates B to murder C. B refuses to do so. A is
guilty of abetting B.
 Ong Ah Yeo Yenna v PP
 HELD: This extension cannot apply in cases where the abetment takes the
form of intentional aid rather than instigation or conspiracy.
 Conviction of the abettor turns on the evidence against him, which may be
different from the evidence against the principal accused.
 Govindalajuru v PP
 HELD: Followed Ong Ah Yeo. The conviction or acquittal of the first appellant is
irrelevant when considering the case against the second appellant.
o Acquittal of co-accused on joint charge
 Where 2 or more accused face a joint charge alleging that they had a common
intention to commit an offence, the charge need not be amended when the co-accused
is acquitted (Teh Thiam Huat v PP)
 Whether or not the failure to amend the charge is proper depends on whether there
would be prejudice to the accused (Aziz bin Abdul Kadir v PP)
 Counsel for the accused did not suggest any prejudice. Court also perused
record of proceedings and mode of trial and found that the failure to amend
the charge was perfectly proper.
 Even if can join, court may order separate trials: Overriding concern – prejudice (s 146)
o Notwithstanding joinder provisions in CPC, court retains discretion to order that accused be
charged and tried separately if of view that accused may be prejudiced or embarrassed in his
defence
 Even if duplicitous and does not fall within the statutory exception, CAN BE CURED
o If accused not misled (s 127) and failure of justice not occasioned by error (s 423)

Double-counting (2 charges for 1 offence)

 Occurs when more than 1 charge is tendered in respect of what is substantially 1 single transaction or
offence.
o Tan Khee Khoon v PP (2005)
 2 charges: [1] attempting to obtain $20,000 in gratification, [2] receiving $5,260 in
gratification
 Evidence showed that the some parts of the $5,260 was part of the $20,000
 HELD: Commission of offence, and attempt, were mutually exclusive events and a single
transaction cannot be both a commission and an attempt  double counting error.
(But since the appellant did not challenge the charges in this appeal, the court did not
amend the charges.)

14
Charges Taken into Consideration
 s 148 CPC: Where accused is found guilty of an offence, the court, in determining and in passing
sentence, may, with the prosecutor’s consent and the accused’s consent, take into consideration
any other outstanding offence or offences which the accused admits to have committed
 Procedure
o After accused found guilty of offence
o Accused & PP must consent to TIC
o Accused must admit to TIC offence
 Effect – may have impact on overall sentence
 S 148(3): High Court may TIC charges not committed for trial in High Court
o i.e. Any outstanding offences he admits to have committed when passing sentence,
notwithstanding that no committal hearing under Division 2 of Part X or no transmission
proceedings under Division 5 of Part X have been held in respect of those outstanding
offences

Withdrawal of Charges
 s 35(8) Constitution and s 11 CPC: Attorney-General has the power to discontinue any proceedings
for any offence
 s 232 CPC: PP may decline further to prosecute at any stage of trial
o Discharge shall not amount to acquittal unless court so directs or where s 147 applies
 s 147 CPC: Withdrawal of other charges upon conviction of accused on charge(s)  discharge
amounting to acquittal unless conviction set aside]
o (1) Where 2 or more charges are made against the same person and he has been convicted
on one or more of them, the prosecution may, court’s consent, withdraw the remaining
charge/s
 E.g. murder and robbery with hurt: upon conviction on murder, remaining charges
on murder may be withdrawn under s 147
o (2) Such withdrawal shall have the effect of an acquittal on the remaining charge /charges
withdrawn unless the conviction is set aside.
o (3) Where a conviction is set aside under subsection (2), and subject to any order of the
court setting aside the conviction, the court may proceed with the trial of the charge or
charges previously withdrawn.

(3) CRIMINAL TRIALS IN THE STATE COURTS

Type of offenders
 Where an accused is produced for criminal matters against him depends first on his
age.
o Adult offenders – trial takes place in the State Courts (Magistrate’s Court/
District Court).
o Juvenile offenders – trial may take place in the Juvenile Court/ HC/DC/MC
 Juvenile as defined under s 2, Children and Young Persons Act (CYPA):
male or female, at least 7 and below 16 years old.

15
  ss 33(6) and (7), CYPA: Relevant date of age is determined at
commencement of the hearing.
 Procedure in the Juvenile Court – see ss 41 and 42, CYPA.
 Orders that can be made on proof of the offence – see ss 44(i) – (k),
CYPA.
 s 31, CYPA: When a juvenile is charged in court, his parent/guardian shall
attend before the court during all stages of the proceedings (unless court
orders otherwise).
 Court may compel the parent/guardian’s attendance.

Securing the appearance of accused: producing accused in court

 Accused MUST BE PRESENT IN COURT to hear charges against him and attendance is
secured either by arrest or summons
o s 233, CPC states that all evidence under Part XII, CPC must be taken in the
presence of accused (/when personal attendance is dispensed with in the
presence of his advocate), hence securing attendance of the accused is of
utmost importance.
 Several ways in which an accused may be produced in court following s 150, CPC:
o [1] Arrest w/o a warrant, followed by release on police bail to attend court.
o [2] Arrest without a warrant, but his held in the police station until brought to
court.
o [3] Laying a complaint before a Magistrate who issues a summons to attend
court.
o [4] As in (3) above, the Magistrate issues
 Warrant for arrest, where accused is arrested and brought to attend
court OR
 Warrant backed for by bail, where the accused is arrested and released
on bail to attend court (s 72, CPC)
o [5] Service by a police officer of a Notice to Attend Court (NTAC).
 DISPENSING with the appearance of the accused in court: 3 common instances where
personal appearance of the accused can be dispensed with
o s 154(1), CPC: When Magistrate endorses on summons that personal
attendance of the accused is dispensed with and permit to appear by advocate
o s154(2): In a summons case, where the offence is punishable with a
fine/imprisonment of up to 12 months1/ both,
 Accused may by letter addressed to the court, plead guilty and submit to
pay any fine which may be imposed.
 s 154(8): if court intends to impose a sentence imprisonment (however
long) without the option of a fine, the accused must attend in person.

1
But where maximum sentence that court can impose exceeds 12 months—attendance cannot be dispensed with (PP v Sinsar Trading).
Note the provision is concerned with the sentencing powers of the court, and not the sentence imposed.

16
 o s 281: Court allows accused to be produced in court though a live video-link
whilst in remand
 CONSEQUENCES OF ACCUSED’S ABSENCE in court
o If the accused voluntarily absents himself the court will issue a warrant for his
arrest
o s 293, CPC: If it is proved that accused had absented himself so that there is no
immediate prospect of arresting him,
 Court may, in accused’s absence, examine any witnesses produced by
the prosecution and record their depositions
o For summons or NTAC, if duly served on accused a reasonable time before the
court date,
 Court may proceed ex parte to hear and determine the complaint or
may adjourn the hearing (s 156, CPC)

Classification of offences
 Arrest cases – classification is made by the prosecution, depending on whether the
prosecution is invoking the hearing and sentencing jurisdiction of the District Court or
Magistrate’s Court.
o District Arrest Case (DAC).
o Magistrates’ Arrest Case (MAC).
 Summons case.
o Police summons (DSC/MSC).
o Notices (DCN/MCN).
o Private summons (PSS) – complaint to the Magistrate by a private person
o Classification according to abbreviation of the prosecuting agency – e.g. MOM,
OA, BCA, etc.
 All charges are registered in the Crime Registry and have an assigned case number.
o Classification is usually stamped on the top right hand corner of the charge
sheet.
 Cases may be transferred btw different criminal courts upon the Prosecution’s
application or the Court’s own motion.
Private Prosecutions
 s 151, CPC 2010: When a lay person lodges a complaint, the Magistrate must examine
the complainant.
o s 11(10), CPC 2010: Only before a Magistrate’s Court for any offence punishable
with up to 3 years imprisonment or with fine only.
o s 12, CPC 2010: PP may issue a fiat for private prosecution for an offence outside
scope of s 11(10), CPC 2010.
 s 152, CPC 2010: After examining the complaint, the court may dismiss the complaint if:
o (1) There is “insufficient reason” to proceed – i.e. there was no suspicion of the
commission of the offence, or a prima facie case.
17
 o (2) There is refusal/failure by the complainant to provide reasonable grounds for
failing to attend mediation at the CMC as referred to by the police or
Magistrate.
 This is because proceeding with a private prosecution should be a
measure of last resort – all reasonable avenues should be explored first.
o (3) Magistrate must record reasons for dismissal.

Classification of court
 Courts hearing criminal cases within the State Courts are structured based on the cases
they have jurisdiction over, the responsibilities that they are tasked with, and the times
that they seat.
o 5 Mentions Courts an accused may appear before when first charged in court –
Courts no. 21, 23, 25N, 26N, and 26.
o Centralised Pre-Trial Conference (PTC) Court – Court no. 17.
 Fixing all non-community court cases either for trial or for guilty pleas
through PTCs and CCDCs
 PG cases: 2 PG courts on duty per week
 Claim trial cases: Fixed in the hearing courts
o Community Court – Courts no. 19 and 20.
 Usually initiated by Magistrate’s Complaint under s 151 CPC
 Adopts a problem-solving approach
 Can also resort to mediation at community mediation center before the
case is heard
 Selected cases heard, involving:
 Youthful offencers (aged 16-18)
 Below 21 years accused of theft, violence, sexual crimes,
gambling, drug related offences
 Offenders with mental disabilities
 Attempted suicide cases
 Family violence cases
 Abuse and cruelty to animals
 Cases which impact on face relations issues
 Selected cases involving accused persons who are 65 years old
and above
 Selected cases involving accused perosns with chronic addiction
problems
 Shop theft cases
 Neighbourhood disputes (Neighbourhood Court)
o s 240, CPC: A case may also be transferred between different criminal courts on
the prosecution’s application or on the court’s own motion.

18
Jurisdiction of District Courts and Magistrate’s Courts
 Jurisdiction refers to their authority to hear cases before them and to sentence the
accused in the event of a conviction
Hearing jurisdiction Sentencing jursidiction
DISTRICT Ordinary jurisdiction s 303(2), CPC –DC may pass any/ combination of
COURT  S 8(1): Any offence punishable with following sentences:
imprisonment of up to 10 years or with  Imprisonment of up to 10 years
fine only  Fine of up to $30,000 per charge
Special jurisdiction  12 strokes per charge (max of 24 at 1 trial)

 S 9(3)(c): Any offence other than one s 306(4), CPC: Aggregate imprisonment at one trial
(Convicted of 2 or more distinct offences)
punishable with death, if PP applies for
the case to be tried in the District Court,  Should not exceed twice that which MC is competent
with consent of accused to impose under s 303 (i.e. cannot be more than 20
yrs’ imprisonment, 24 strokes)
Notwithstanding s 8(1)2
DC can also impose other sentences such as:
 S9(3)(a), CPC: Any offence under the
Penal Code, which are listed in the 7th  Reformative training
Column of the First Schedule, CPC  Corrective training
 S9(3)(b), CPC: For offences under other  Preventive detention
laws, if the District Court is specifically  Community Orders (s 337 CPC on when such orders
empowered to try under the law. may be made)
o Mandatory Treatment Order
o Day Reporting Order
o Community Work Order
o Community Service Order
o Short Detention Order
 Probation
 Conditional discharge
 Absolute discharge
 Forfeiture
 Disqualification

MAGISTRATE’ Ordinary jurisdiction s 303(3), CPC: MC may pass any of the following/
S COURT  S 7(1)(a): Any offence punishable with combination –
imprisonment of not more than 5 years  Imprisonment of up to 3 years
or fine only.  Fine of up to $10,000 per charge
Special jurisdiction  6 strokes of the cane per charge

 S 9(1): Where an offence is triable by a DC s 306(4), CPC: Aggregate imprisonment at one trial
(convicted of 2 or more distinct offences)
but not by a MC, PP may in writing
authorise a MC to try the offence.  Should not exceed twice that which DC is competent
to impose under s 303 (i.e. cannot be more than 6
years’ imprisonment)
Notwithstanding s 7(1)
MC allowed written law’s enhanced sentencing powers
 S 9(2)(a), CPC: For offences under Penal
Code, any offence listed to be triable in a  If written law empowers the MC to award full
MC in the 7th Column of the First punishment which exceeds the above, then the
Schedule, CPC. written law’s enhanced sentencing powers are
 S 9(2)(b), CPC: For offences under other followed – e.g. Betting Act, Common Gaming Houses
laws, if specifically empowered to try Act, etc.
under the law
MC may also make any of the following orders
 Reformative training
 Probation

2
Note not an englargement of sentencing powers (s 9(4), CPC)

19
  Conditional discharge
 Absolute discharge
 Forfeiture
 Disqualification

Parties to any criminal proceedings in the State Courts

 Parties – mainly the prosecution and the accused.
 Attorney-General (AG) as the Public Prosecutor (PP).
o Article 35(8), Constitution and s 11(1), CPC: The AG is the PP and he has control
and direction of criminal proceedings under the CPC 2010 and any other written
law.
o Powers of the AG.
 s 11(3), CPC: Power to deputise persons to assist in performance of his
functions/duties (DPPs).
 ss 11(5) – (8), CPC: Power to authorise advocate to act for the AG to
conduct prosecution.
 s 11(9), CPC: Power to authorise officer of public body to prosecute (only
in summary cases before a Magistrate’s Court).
 Private prosecution
o s 11(10), CPC: Only before a Magistrate’s Court for any offence punishable with
up to 3 years imprisonment or with fine only.
o s 12: PP may issue a fiat for private prosecution for an offence outside scope of s
11(10).
 Accused
o More than 1 accused may be tried jointly with committing a single offence or
for separate offence – refer to the rules of joinder (ss 133, 134 CPC)
o A company can also be charged with a criminal offence and a representative
may on its behalf do any act/thing (such as pleading guilty) – see s 117(1)-(2),
CPC.
 s 117(6), CPC: A “representative” is a person duly appointed in writing by
a director, manager or secretary or an officer of the company to
represent it at the court proceedings.

Application for adjournment and remand

 Court’s power to adjourn or postpone proceedings in criminal matters.
o s 238(1), CPC 2010: Court can postpone or adjourn any proceeding on such terms as it thinks fit and for as
long as it considers reasonable, if it thinks it is necessary or advisable.
 s 238(5), CPC 2010: Court must record the reasons for postponement or adjournment.
 If the PP is not ready for trial, he may ask for an adjournment – reasons for adjournment must be necessary and
reasonable in order to be granted.
o Common reasons for adjournment by the prosecution and time frames permitted:

20
  1 – 2 weeks if seeking DPP’s instructions.
 2 – 4 weeks for prosecution to complete investigation.
 2 weeks for a psychiatric report (if accused is in remand at IMH).
 4 weeks for a HAS report (for drug related offences), but expedited if accused is in remand.
 4 weeks for medical report of the victim.
 If the PP is ready at the first mention, the accused or his counsel may ask for an adjournment – reasons for
adjournment must be necessary and reasonable in order to be granted.
o Common reasons for adjournment by the accused and time frames permitted:
 1 – 2 weeks to engage counsel or apply for CLAS.
 4 weeks (if the accused is not in remand) if counsel requires time to apply for papers and to make
written representations.
 2 – 3 weeks to raise funds or to make restitution and to plead guilty thereafter.
 1 – 2 weeks to prepare written mitigation after which the accused will take a certain course.
 The PP can also apply for:
o Remand the accused in custody for the purposes of investigation.
 Period of remand – s 174, CPC 2010 read with s 238, CPC 2010:
 s 238(2), CPC 2010: If accused is not on bail, court may remand him in custody as it
thinks fit.
 s 238(3), CPC 2010: Not longer than 8 days at a time.
 Medical basis for adjournment.
o Part XV, Subordinate Courts Practice Direction 2006:
 [135]: Must tender original Medical Certificate in the following form:
 MC from a Governmental hospital in a form (sample of the form can be found in Form
52, Appendix B of the PD 2006)
 MC must show that the person is unfit to appear in court
 MC must be signed and authenticated by a stamp stating the doctor’s name and
designation
 Chua Tiong Tiong v PP [2001]
o Appeal was adjourned for 4 times because he underwent bypass surgery
o HELD: Leave was not granted to writhdraw the appeal, but the appeal was adjourned until the appellant
was arrested

Procedure for summary trials

 [1] Accused is charged
o Charge is read to the accused in a language that he understands
o Accused is required to plead to the charge (guilty or not guilty)
o Fitness to plead—accused must be fit to plead if his plea is to be accepted
 Refer to chapter on Guilty-Plea Herings
 [2] Pre-Trial Conferences
o PTC system – refer to Chapter on Pre-Trial Matters
o PTC can be adjourned for CCMS (Criminal Case Management System)
 Only for selected cases where accused is represented by counsel and on bail
 Either PP or Defence Counsel can suggest a CCMS meeting
 Meet and discuss their case
 Solicit and disclose information
 Assess the relative merits of their cases
 Engage in Plea bargaining.
 [3] The trial
o Trial in open court and freely reported unless otherwise provided
o Rationale:
 AG v Leveller Magazine Ltd (1979)
 HELD: Provides a safeguard against judicial arbitrariness/idiosyncrasy and maintains
public confidence in the administration of justice
 Exceptions

21
  S7, State Courts Act: If evpedient in the interests of justice, public security, or propriety,
court has the power to hear any proceeding in camera
 S153(1), Women’s Charter: Proceeding in camera for certain offences against
womens/girls.
o Procedure at trial: s230, CPC 2012
o Interpretation of evidence to accused: s288, CPC 2012:
 Mat Repin bin Mamat v PP [1994]
 HELD: If the accused elects to speak in a foreign language/dialect, the court is duty
bound to arrange for a certified foreign interpreter. Right to an interpreter cannoted by
waived by the accused or his counsel. Court has duty to ensure that the accused is able
to substantially understand the evidence given in the proceedings.

Discharge of accused at any stage of summary trial

 Prosecutorial power to discontinue proceedings.
o s 232(1), CPC 2010: PP may decline further to prosecute at any stage of the trial.
 Loh Siang Piow v PP (1998)
 HELD: PP’s right to decline further prosecution comes into existence upon the
commencement of a summary trial.

o Arjan Singh v PP (1993), Ranjit Kaur d/o Awthar Singh v PP (1999)

 HELD: Court cannot interfere with the prosecution’s decision not to prosecute.
o Ranjit Kaur d/o Awthat Singh v PP (1999)
 Accused charged with Criminal Breach of Trust. Prosectuion then found more evidence of more
money being appropriated by the accused. Applied for adjournment but not granted. Prosectuion
then applied for discharge not amounting to acquittal but appellant wanted to be acquitted.
 HELD: When application for discharge under s184(1) (now s232, CPC 2012) is made, the court has
an unfettered discretion to direct that the discharge amounts or does not amount to an acquittal.
Factors to consider whether the discharge should amount to an acquittal:
 Prosecutions intentions to further prosectuion
 Interests of justice
 Providing the accused with a fair trial
o Law Society of Singapore v Tan Guat Neo Phyllis (2008)
 HELD: Prosecutorial power is not immune to judicial correction where it has been exercised
arbitrarily (hence, ultra vires Article 35(8), Constitution) or in breach of constitutionally-protected
rights (hence, contravening Article 12(1), Constitution).
o Ramalingam Ravinthran v AG (2012)
 HELD: PP is not required by law to charge all offenders involved in a criminal enterprise with the
same offence, be it a capital offence or a non-capital offence, provided that his decision is not
based or made as a result of taking into consideration irrelevant matters.
o Marites Dela Cruz Martinez v PP [2011]
 HELD: Only the Public Prosecutor had the right to appeal against an order of acquittal pursuant to
s245, CPC 2010 (same as CPC 2012)
 Any grievance against the way this discretion was exercised should be expressed through a
separate originating action.

 Discharge amounting to, or not amounting to, acquittal.

o If prosecution informs that the court that it declines to further prosecute, the court may order a discharge
amount to acquittal (DATA), or a discharge not amount to acquittal (DNATA).
 s 232(2), CPC 2010: Discharge shall not amount to acquittal unless the court so directs or where s
147, CPC 2010 applies.
 TS Video and Laser Pte Ltd v Lim Chee Yong (2001)
 HELD: Prima facie position under s 232(2), CPC 2010 is in favour of a DNATA. (No
acquittal)

22
  An order of DNATA means that the accused can be tried again on the same offence
without offending the doctrine of autrefois acquit.
 PP v Ng Guan Hup (2009), Goh Cheng Chuan v PP (1990), K Abdul Rasheed v PP (1984)
 HELD: Discretion to order DATA or DNATA must be exercised judicially, taking into
consideration all relevant facts.
o E.g. including the intention of the prosecution as to whether he intends to
proceed against the accused on the same offence in the future.
o E.g. public interest – seriousness of the charge, unfairness to the accused to
have the charge hanging indefinitely over his head.
 However, if it is clear that the prosecution has no intention to proceed against the
accused in the future, the court will usually order a DATA.
s 232(4), CPC 2010: If accused has been granted a discharge not amounting to acquittal, the court may subsequently
grant the accused a discharge amounting to acquittal on the application of the prosecution.

4 BAILS AND BONDS

 BAIL: Security (cash or a pledge of personal property) furnished by a surety who executes a bail bond, to
ensure the attendance of the accused (for investigations or in court)
o Person to be released must execute a bond for such sum of money as the court/police thinks is
sufficient
o One or more sufficient sureties must execute the bond: s 99(2) CPC 2012
 PERSONAL BOND – an alternative to a bond with sureties (s 99(1), CPC)
o Person to be released must execute a bond for such sum of money as the court/police thinks is
sufficient
 Purpose of bail – Abdul Khabie Uddin Tohron Nisa v PP
o [1] Preserving “golden thread” in criminal law that a person is innocent until proven guilty
o [2] Ensuring that the accused does not abscond before the trial
 Not punitive in nature (not meant for punishment)

Types of bail

 POLICE BAIL
o Arrest without warrant: ss 67 and 68, CPC
 S 67, CPC: A police officer making an arrest without warrant shall, without unnecessary
delay, take/send person arrested before a Magistrate’s Court
 s 68, CPC: In addition, he shall not be detained for longer than 48 hours
 When produced in court, can be given court bail by Magistrate
o Alternative – release on bail/ personal bond by the police
 s 92(1), CPC: Police bail for bailable offences
 When any person, except a person accused of a non-bailable offence
o Is arrested or detained w/o warrant by a police officer, or appears or
is brought before a court; and
o Is prepared to give bail at any time while in the police officer’s
custody/ at any stage of proceedings before the court,
The person must be released on bail by a police officer
 s 93(1), CPC: Police bail for non-bailable (discretionary)
 If any person accused of any non-bailable offence is arrested or detained w/o
warrant by a police officer, or appears or is brought before a court, he may be

23
 released on bail by a police officer of or above the rank of sergeant or by the
court.
o  Person arrested would, in practice, either be released on police bail/ produced before a
Magistrate and charged for an offence, whereupon court would consider issue of bail.
 COURT BAIL
o Arrest without warrant: Court considers bail when the arrested person is produced before a
Magistrate’s Court (within 48 hours)
o Arrest pursuant to a warrant: s 72 – Arrest warrant may allow accused to be released on bail
 S74: Otherwise, arrested person has to be brought before the court without delay
(issuing court can then consider bail issues)

When can bail be granted?

 BAILABLE (s 92, CPC)

o s 2, CPC: A bailable offence is an offence shown as bailable in the 5th Column of the First
Schedule, CPC or which is made bailable by any other law
o Bail shall be offered as of right: s 92, CPC—court has no discretion to refuse bail
 S 92: When any person is arrested/detained/brought before a court for a bailable
offence, the person must be released on bail if the person is prepared to give bail
 S 92(2): Instead of taking bail, a personal bond also can
 The right to bail is substantive: R v Lim Kwang Seng
 NON-BAILABLE (s 93, CPC)
o s 2: A non-bailable offence means any offence other than a bailable offence
o Whether bail is offered is discretionary
 BOP lies on accused charged with a non-bailable offence to show that bail should be
extended to him: (S Selvamsylvester v PP).
 In deciding whether to grant bail, the court takes into account a non-exhaustive list of
considerations (PP v Wee Swee Siang) including:
 Whether reasonable grounds for believing accused is guilty of the offence;
 Nature and gravity of the offence charged;
 Severity and degree of punishment;
 Danger of the accused absconding if released on bail;
 Accused’s character, means and standing;
 Danger of the offence being continued or repeated;
 Danger of witnesses being tampered with;
 Whether grant of bail is essential to ensure that accused has an adequate
opportunity to prepare his defence; and
 Length of period of detention of the accused and probability of any further
period of delay.
 Guiding principle of granting bail is to ensure that there is a pull factor to bring the
accused back to court so as not to forfeit the bail and cause loss to the bailor
 PP v Yang Yin: Bail was not granted because the pull of bail was absent.
 Respondent had few roots in SG, there was evidence that the respondent had
means to live comfortably if he did abscond, there was evidence that he was
deceptive to the IO and showed a likelihood of him absconding etc.
 Sexual offences were serious offences which did not allow for bail to be granted
 S Selvamsylvester v PP: Accused was charged with acts of gross indecency,
outrage of modesty and engaging in carnal intercourse against the order of
nature, bail not granted despite him being the sole bread winner etc.

24
  If the investigation by the police causes inordinate delays, this might be an exception to
grant bail, even in the case of a serious offence (R v Ooi Ah Kow)
o Who may grant?
 Court
 Police officer of or above the rank of sergeant (s 93(1))
o S 93(2): Subject to s 95(1), if, at any stage of an investigation, inquiry, trial or other proceeding
under this Code, no reasonable grounds for believing that accused has committed a non-
bailable offence, the police officer /court must release him.
o S 93(3): Mandatory bail if grounds for further investigation as to whether D has committed a
bailable offence pending the investigations, the accused must be released on bail or, at the
discretion of the police office/court, on his own personal bond.
o S 93(4): Reasons for releasing on bail under s 93 must recorded in writing
o S 93(5): Court has power to cancel bail at any time, causing the person to be arrested and may
commit him to prison
 EXCEPTIONS TO BAIL –NO BAIL CAN BE GRANTED IF
o S 95(1)(a): Accused is charged for an offence punishable with death or life imprisonment;
 Selvamsylvester v PP: Mere fact that he faces a charge carrying such punishment is
insufficient; there must be some material, which assumed to be true, would point
towards his guilt
 E.g. admissions or confessions, medical or scientific evidence like DNA tests or
fingerprints, eyewitness evidence, circumstantial evidence
 Can High Court grant bail for offence punishable with death/ life imprisonment?
 Depends on whether HC’s powers in s 97 CPC are subject to s 95 (see
conflicting positions below)
 However under s 95(2)(b): Court may release on bail an accused charged with such an
offence if offence is also punishable with an alternative punishment other than
death/life imprisonment; AND the offence is to be tried before a DC/MC
o S 95(1)(b): Has previously failed to surrender himself to custody or attend court despite having
been released on bail/personal bond previously, and the court believes the same will happen if
released
o S 95(1)(c): Has been arrested/ taken into custody under the Extradition Act
 BUT bail may still be granted to juvenile/sick or infirm person accused of such an offence (s 95(2)(a))

Release on bail
 S 100(1), CPC: As soon as the bail bond has been executed, the accused must be released
 S 100(3), CPC: However, if the accused is liable to be detained for a different matter other than for which
the bail bond is executed, then he shall not be released

Effect on sentence

 s 318, CPC: A sentence of imprisonment takes effect on the date it was passed, unless the court
otherwise directs
o As a general rule, the period in which a convicted person has been out on bail should not be
taken into account in backdating a sentence (Tan Kin Seng v PP)
 Remand period  adjust sentence downwards (PP v Sivanantha a/l Danabala)
 If that person had spent time in remand prior to bail, that period of remand
could be taken into account by making an appropriate downward adjustment
to the sentence, and no backdating need be ordered
o BUT exceptional situations when backdating should be allowed so as to ensure that the
convicted person was not excessively punished

25
  Situations in which a downward adjustment to sentence could not be made
 E.g. where a lengthy mandatory minimum term of imprisonment was required
 Would not be fair if sentence could not be backdated to take into account the time
spent in remand.
 Precedents in which the High Court ordered that sentences be backdated
notwithstanding a “break” in custody in the form of an intervening period of bail.
 Thus backdate to ensure that the convicted person was not excessively punished
Bail pending appeal

 ACCUSED APPEALS
o S 382, CPC: Court has discretion to grant bail pending appeal
 State Court/ High Court may grant bail to an accused who has filed a Notice of Appeal
against his conviction or sentence
o S 383, CPC: No appeal shall operate as a stay of execution of the judgment/order/ conviction,
but the court MAY STAY SUCH EXECUTION pending appeal by ordering bail
 However stay of execution (through bail) should not be granted unless there are
“special reasons” for doing so (Re Kwan Wah Yip)
 The mere fact that a Notice of Appeal has been given is not a sufficient reason;
there must be good grounds for appeal
 Considerations court will take into account in exercising discretion: (Re Kwan Wah Yip)
 Gravity of the offence
 Likelihood of the accused absconding
 Whether difficult points of law involved
 Possibility that accused would be involved in other offences while on bail
 First offender/ previous convictions
 Length of imprisonment vs. time it will likely take for appeal to be heard
 Whether the security will ensure the attendance of appellant before court
 One important factor is length of potential imprisonment the accused would face VS
time it takes for the appeal to be heard
 Loh Kok Siew v PP: Bail normally granted where length of potential
imprisonment is relatively short (compared to the time it takes for the appeal
to be heard), otherwise it would render the results of a successful appeal
academic if the accused had already “served” his sentence.
o Note in practice, bail amount is usually increased by a few times
o If an application for bail pending appeal had been denied, a second or subsequent application
for bail pending appeal should not be given unless there are special reasons for doing so (Ding Si
Yang v PP). May include
 A material change in circumstances
 New facts that have since come into light
 Serious defects /demerits in the judgment below that would suggest that chances of
succeeding on an appeal are so good as to warrant immediate release from
incarceration;
 An error of law that is obvious on the face of the record has been made, or there has
been a serious misinterpretation of facts by the trial court
 PROSECUTION APPEALS (s 389) –special category of bail pending appeal
o S 389(1): Where Prosecution informs the High Court of its intention to appeal against acquittal
of an accused person, the court, on the application of PP, can order the accused to be remanded
in custody up to 24 hours pending the filing of the Notice of Appeal.
o S 389(2): Where the PP proceeds to appeal against an acquittal, the High Court may then
commit him to prison pending disposal of the appeal or admit the accused to bail

26
 o Rationale (PP v Norman bin Ismail)
 Ensures that the Prosecution’s right of appeal is not rendered academic or nugatory as
a result of the absence or non-attendance of the accused.
 On the facts of Norman, accused was not granted bail and was remanded as he was a
foreigner without a fixed place of abode; the court considered that he might abscond if
he were to be released on bail, defeating the ends of justice.

Quantum and conditions of bail

 QUANTUM OF BAIL (s 96, CPC): Amount of bail to should be fixed with regard to the circumstances of
the case as being sufficient to secure the attendance of the person arrested or charged
o Factors to consider: Soo Shiok Liong v Pendakwa Raya
 Nature and gravity of offence
 Severity and degree of punishment
 Quantum should be higher in non-bailable offences
 Excessive quantum may defeat the granting of bail
 Likelihood of absconding if bail quantum is too low
 Bail is intended to secure attendance and not to be punitive
 Whether passport is surrendered
 Whether accused presented himself at police station and cooperated with police
o Where accused is a flight risk, no bail should be granted at all (Ewe Pang Kooi v PP)
o Ewe Pang Kooi v PP
 Bail money must be the bailor’s and it must be sufficient to ensure that the bailor will
not shirk from his duties as a bailor, and that the accused will not wish to see his bailor
impoverished by a forfeiture of the bail money
 HELD: Accordingly, the court also needs to know details about the bailor, and the
money furnished MUST come from the bailor and not any one else.
 MANDATORY CONDITIONS
 S 99(1), CPC: Bond mus be executed by one or more sureties, on condition that the
released person attends on the date, time and place mentioned, and must continue to
attend until otherwise directed by the police officer or court, as the case may be.
o S 99(4), CP: Bond is subject to the further condition that the person must not leave SG w/o the
permission of the police officer/ court
 S 99(6): Released person must personally apply in the presence of his sureties
 S 99(5): If granted, must be evidenced by an endorsement on the bond specifying for
how long and the place to which the permission applies
 DISCRETIONARY CONDITIONS
o S 94(1) CPC: A police officer or the court may impose such conditions as are necessary when
granting bail or releasing the accused on personal bond under section 92 or 93.
o Conditions may include (s 94(2)):
 (a) Surrender travel documents
 (b) Surrender to custody or to make himself available for investigations or to attend
court on the day and at the time and place appointed for him to do so;
 (c) Not to commit any offence while released on bail /personal bond
 (d) Non-interference with witnesses or obstruct the course of justice
 CONSEQUENCES of BREACH OF CONDITIONS: s 103
o A released person may be arrested without a warrant
 If he does not surrender himself to custody/ make himself available for investigations
or to attend court when he is supposed to (s 103(1))

27
  If there are reasonable grounds for believing that he is unlikely to surrender to
custody/make himself available for investigations/ to attend court (s 103(3)(a))
 If there are reasonable grounds for believing that he is likely to break or has broken any
of the conditions of his bail /personal bond (s 103(3)(b))
 Any of his sureties informs that he is unlikely to surrender to custody or make himself
available for investigations, and that the surety wishes to be relieved of his obligations
as a surety (s 103(3)(c))
o S 103(4): Once brought before court pursuant to arrest, the accused may be placed in remand or
granted a bail subject to such conditions as it thinks fit if the court thinks:
 (a) Is unlikely to surrender to custody or make himself available
 (b) Has broken or is likely to break any conditions of his bail
o Note a decision to revoke bail under these provisions is not to be justified on the ground that it
is to punish an accused for breaching a bail condition (PP v Sollihin bin Anhar)
 Such a condition would have been imposed in the first place to allow the court to strike
a balance btw accused’s interests’ and those of society.
Variance, revocation etc.

 Apply for criminal revision to vary or revoke the bail

 S 102(1), CPC: Conditions of bail can be varied, further conditions imposed, or released person can be
arrested and committed into custody if – there has been a material change of circumstances; or new
facts have since come to light after bail has been granted
 S 102(2), CPC: If, through mistake, fraud or otherwise, insufficient sureties have been accepted,
O Court may issue an arrest warrant directing the released person be brought to court and may
order him provide sufficient sureties
O S 102(3): If released person fails to provide sufficient sureties, court may commit him to custody.
 How court should exercise its powers under ss 102 and 103,
o A decision to revoke bail under these provisions is not to be justified on the grounds that it is to
punish an accused person for breaching a bail condition.
o PP v Sollihin bin Anhar [2015] SGCA (Accused supposedly broke some conditions of his bail and
the prosecution applied to revoke his bail)
 Court should consider the evidence before it and consider the likelihood of the
consequences in those provisions (consider im/probability)
 Ultimately engaged in a balancing exercise btw the interests of the accused person and
those of society
o Where revocation of bail is sought on the basis of new facts, the Prosecution should avail itself to the
process in s 102 instead of immediately seeking revocation through criminal revision (Sollihin)

High Court’s power to vary bail: s 97, CPC

 S 97: Whether there is an appeal against conviction or not, HC may grant bail to any accused before it/
release him on personal bond/ vary amount or conditions/ impose such other conditions for the bail or
personal bond as it thinks fit.
o Application is by way of criminal motion (under s 405, CPC) to seek a grant/ variation of bail
orders made in the State Courts
 An Affidavit is required to support the application (s 98)
 Affidavit must state sufficient facts to enable the court to determine whether
or not such bail/release should be granted.
 No right of appeal to HC from a bail order made in State Courts (Yang Yin v PP)
 It has been described as a “statutory power of review” (Christianto Radius v PP)

28
  Is High Court’s power to grant and vary bail is limited by s 93 or s 95 CPC?
o HC bound – Selvamsylvester and Fatimah bte Kumin Lim v AG (HC, 2014):
 Both ss 93 and 95 would apply to the HC in exercising its powers under s 97.
 Fatimah: s93, 95 and 97 refer to a “court” either expressly or by implication. The CPC
2012 defines a court as the CA, HC and DC and MC. Hence it is clear that the HC was
included in these 3 provisions.
o HC not bound – Mohamed Hisham bin Sapandi v PP (applied in Christanto Radius v PP, 2012)
 ss 93 and 95 only applied to the State Courts and not to the High Court i.e. HC’s
jurisdiction under s 97 was unfettered by anything in s 95
 Consequences of construing these provisions as applying to HC would be awkward
because
 Would not be right to impose a prohibition on HC’s power to grant bail;
 Wording of s 97(2) was similar to that of s 93(5) and would be somewhat
superfluous if s 93 applied to the HC; and
 Specific mention of HC in s 97 but not in s 93 must have been deliberate, and
indicated that the latter was not intended to apply to the HC
 s 97 does not allow the High Court to revoke bail
o Yang Yin v PP: s 97 did not apply when Prosecution is seeking the revocation of a bail order
made by the State Courts; the proper procedure for doing so is by way of criminal revision.
 Dissatisfied with HC decision?
o No right of appeal to the Court of Appeal from an order made by the HC pursuant to s 97
 Because interlocutory and not final
 CA’s jurisdiction is to hear appeals against orders of finality.
 An order refusing bail, being interlocutory and tentative in nature, does not
fall within the meaning of the words “judgment, sentence or order” in s 374
CPC and is thus non- appealable
o However, possible to make successive applications to the High Court.
 But once an application has been rejected, Court would be extremely reluctant to grant
bail unless new facts have emerged or there has been a material change in
circumstances (Mohd Razip v PP)

Duties of the surety: s 104, CPC

 A surety must
o (a) Ensure that the released person surrenders to custody, or makes himself available for
investigations or attends court on the date/time/ place so appointed;
o (b) Keep in daily communication with the released person. Must lodge police report within 24
hours of losing contact with the released person; and
o (c) Ensure that the released person is within SG, unless otherwise permitted by the police or the
court to leave SG
 s 104(2): If there is a BREACH of these duties, court may, having regard to all the circumstances of the
case, forfeit the whole or any part of the amount of the bond
o Surety has right to show cause (see s 107)
o PP v Ram Ghanshamdas Mahtani [2003]
 The obligation that bailors have is a legal one with consequences attached to it
 Thus efforts not enough:
 Relying on mere faith that released person will appear in court
 Mere making of a police report not sufficient to excuse surety; otherwise the
bailor can just escape his obligations just by reporting to the police

29
  Bailors did not expend every effort to search for the released person.
 S 105: Surety may apply to DISCHARGE the bond at any time
o On receiving such an application, the court may issue an arrest warrant for the released person
to be produced before it.
o Upon appearance of released person, the court must discharge the bond wholly / so far as it
relates to applicant and must call on released person to provide other sufficient sureties.
o S 105(3): Bail bond will not be discharged until the accused is produced in court

Forfeiture of bond: s 107, CPC

 If accused fails to surrender to his bail, it is only in the most exceptional cases that court will modify the
prima facie position, which is that the amount will be forfeited in full (Loh Kim Chiang v PP)
 S 107, CPC: If it is proved to a court’s satisfaction that a bond has been forfeited, the court:
o (a) Must record the basis of such proof;
o (b) May summon the surety; and
o (c) May call on him to pay amount of the bond / explain why he should not pay it
 Burden falls on the surety to satisfy the court as to why the full sums should not be forfeited (Re Ling
Yew Huat)
o Loh Kim Chiang v PP: Emphasis is on culpability of surety in the failure to secure the attendance
of the accused (includes a consideration of the efforts taken to secure attendance by the surety)
 What can court do?
o S 107(6): Court may reduce the amount of bond and enforce part payment only
o S 107(2): Court may recover the amount by issuing an order for the attachment and sale of his
property
o S 107(4): If amount of bond is not paid/ cannot be recovered by attachment/sale, court may
commit surety to prison for a term not exceeding 12 months
 S 108, CPC: All orders made under s 107 by any MC or DC are APPEALABLE
o Public Prosecutor has standing to appeal against any show of cause proceedings / order on the
forfeiture of a bail bond (under ss 377 and 108, CPC) and should be considered a party to
proceedings involving issues of bail (Mahadi bin Mohamed Daud v PP)

5- Advising Clients and Taking Instructions

introduction
 Right to counsel – guaranteed by the Constitution.
o Article 9(3), Constitution: Where a person is arrested, he shall be informed
as soon as may be of the grounds of his arrest and shall be allowed to consult
and be defended by a legal practitioner of his choice.
 Accused person’s constitutional rights
o Article 9(4), Constitution: Where a person is arrested and not released, he
shall, without unreasonable delay, and in any case within 48 hours
(exclusing the time of any necessary journey) be produced before a
Magistrate and shall not be further detained in custody without the
Magistrate’s authority.
 Duties of defence counsel.
o Act in the best interest of the client.
o Represent the client to the best of one’s ability.
 The importance of professional ethics.

30
 o Defence counsel is bound by professional ethics – e.g. cannot lie on behalf of
the client.
o Serious sanctions for breach – e.g. suspension, striking off the Roll.
o In conclusion, always conduct oneself with honour, integrity and dignity at
all times.

Anatomy of taking instructionss

 Situations in which client comes to see you.
o [1] Before he is charged – i.e. while police investigations are ongoing.
 Obtain client’s instructions in relation to the charge.
 Rule in Browne v Dunn (1893) stipulates that the instructions
will form the basis on which the defence counsel will put
forward the client’s case.
 Hence, it is important to have a thorough understanding of the
ingredients of the charge, and the facts in issue.
 Obtain the FIR, medical reports (if any), etc.
 Advise the client to arrange for a bailor (if necessary).
 Bailor to be present in court at Mention of case
 Must be: Singapore citizen or PR, not a bankrupt, above 21
years, not involved
 Do not advise the client to collude or destroy evidence
 This is an offence under s 200, Penal Code (also, see ss 201
and 204A, Penal Code).
 Do not advise the client to conceal evidence or do anything to conceal
information or screen him or any person from legal punishment.
 Rule 59 & 60(f), LP(PC)R: Lawyer shall not concoct evidence,
or contrive facts which will assist in advancing his client’s case
 Do not make representation or give advice to him on matters which
one knows is not true – e.g. advising that he will be sentenced to a
fine only, etc.
 Do not make promises or give assurances which one cannot keep or
perform.
 Particular attention oguth to be paid to the defence of alibi, if
available—sufficient notice is required to be given to the prosecution
 S278(5), CPC 2012: Notice should be given either
o (a) when the accused is charged in court; or
o (b) in writing to the Public Prosecutor, or to the officer
in prison within 14 days from which he is charged in
court for the first time
o [2] After he is charged, and when he is out on police/court bail.
 Examine the charges and advise the client.
 Take further and detailed instructions on the charges.
 Decide whether to make representations to the AGC on the charges.
 Client to decide whether to plead guilty or claim trial to the charges.
 If client is found guilty, or decides to plead guilty, to be
prepared to present a plea of mitigation on his behalf – hence,
must collect information about the client’s family background,
marital status, academic records, employment history,
previous antecedents, medical background, etc.

31
  Obtain documentary evidence in support.
 Obtain client’s approval of the draft representations.
 Advise the client on the importance of statements.
o Important to explain that there are 2 types of statement that would have
been recorded.
 Cautioned statement (pursuant to s 23(3), CPC 2010).
 Long statement (pursuant to s 22, CPC 2010).
 Client’s background
o Plea of mitigation
o Written representations to the AGC
o Oral representations to senior DPPs or Courts to review the charges, review
the charges or proceed with lesser number of charges
o Things to ask for:
 Family background
 Marital status
 Employment history
 Medical history
 Academic records
 Antecedents and try to get as much information on that as well
o Note: Get as much information as possible. Be gentle and police, ask tackfully
etc.
o Note: Always get documentary evidence in support
o Obtain client’s approval of the draft representations before submitting to the
AGC
 Advise the client of defences and burden of proof for defences.
o Pay attention to possible defences available to him.
o Particular attention ought to be paid to the defence of alibi (if any) because
sufficient notice must be given to the prosecution before such evidence may
be adduced in the court of trial (see s 278, CPC 2010).
 Such notice cannot be retrieved – retraction of alibi defence can count
as a previous inconsistent statement that the prosecution is entitled
to use.
 Advise the client of ramifications of s 182, Penal Code for giving false information.
o s 182, Penal Code: Whoever any information which he knows or believes to
be false, intending thereby to cause, or knowing it to be likely that he will
thereby cause, such public servant to use his lawful to the injury or
annoyance of any person, etc., shall be punished with imprisonment not
exceeding 1 year, or with fine not exceeding $5,000, or with both.
 Importance of keeping attendance notes and taking instructions in person.
o Do not give advice or receive instructions over the phone, via fax or email,
unless these are the preferred modes of communication, and if need be,
there should always be a follow-up meeting.

Legal costs
 Provide the client an estimation of legal costs (preferably in the 1 st meeting) and the
importance of costs.
o Fees for trial.
o Mitigation fees if he pleads guilty.
o Costs if the charge is withdrawn on the first day of hearing.

32
  Schedule of legal costs would be useful to outline the charges a client will have to
pay.
o Sample:
 [1] Retainer/ Deposit
 [2] Disbursements
 Payment for police reports, medical reports etc.
 Transport costs
 Stationery, postage etc
 [3] Attendance in court
 For mention, including bail application
 PTC, CCMS, CCDC
 Hearing
 [4] Preparation fee for hearing/ Trial
 [5] Refresher fee
 [6] GST
 [7] Additional cost not anticipated at time of brief

Professional ethics
Have since changed rr 14 and 15, PCR
 Defending the accused regardless of personal opinion.
o r 72, LPPCR: Shall defend irrespective of any opinion formed as to the guilt
or innocence of that person.
 Duty of defence counsel.
o r 73, LPPCR: To protect the client from being convicted except by a
competent court and upon legal evidence sufficient to support the
conviction.
 What happens if there is a confession by the client?
o r 74, LPPCR: Not to set up an affirmative case inconsistent with the
confession – e.g. asserting that some other person committed the offence
charged, or calling evidence in support of an alibi.
 How to advise client to plead?
o r 75, LPPCR: May advise the client to plead guilty, but the client must be
allowed complete freedom of choice.
 Absence of advocate or solicitor from criminal trial.
o r 76, LPPCR: Shall not be absent from a trial unless:
 There are exceptional circumstances that cannot reasonably be
foreseen.
 Obtained the consent of his client.
 A competent assisting counsel takes over the conduct of the case.
 Can the advocate act for an accused who had absconded?
o r 77, LPPCR: May continue to act, and if the advocate and solicitor does so,
shall conduct the case on the basis of the instructions he has received as if
the client is still present in court but had decided not to give evidence.
 Disclosure of previous convictions.
o r 78, LPPCR: No duty to make any disclosure to the court if the disclosure
would be to his client’s detriment, but should not assert that the client has
no conviction or ask a prosecution witness whether there are previous
convictions against the client in hope of receiving a negative answer.
 Evidence from accused.

33
 o r 79, LPPCR: May advise the client about giving evidence in his own defence,
but the client must be allowed complete freedom of choice.
 Mitigation plea.
o r 80, LPPCR: Shall not make an allegation that is scandalous or calculated to
vilify or insult any person.
 Acting after conviction and sentence.
o r 81, LPPCR: Shall continue to reasonably assist his client.
 Bail.
o r 82, LPPCR: Shall not post bail for the client in a cause where he is
personally conducting the defence on behalf of the client.
 Key issues and personal conduct.
o Note: Where a guilty plea is extracted from the accused by pressure and the
circumstances are such that he cannot genuinely choose between pleading
guilty or not, then that plea is a nullity.
 Gao Hua v PP (2009)
 Applicant pleaded guilty to 2 charges of corruption and was
sentenced to 10 months imprisonment. She then appealed,
seeking to set aside her plea of guilt because [1] she had been
wrongly advised and/or misled by her lawyer who assured
her that only a fine would be imposed on her if she pleaded
guilty, and [2] her lawyer prior to and at the time she pleaded
guilty had placed her under very real and substantive
pressure.
o Issue was whether there was “serious injustice” which
would warrant an exercise the High Court’s power of
revision – on the facts, whether the pressure exerted on
the applicant resulted in her decision to plead guilty?
 HELD: Court held that it was unsafe to uphold the applicant’s
conviction, set aside the conviction and remitted the case back
to the District Court.
o Court found that there was evidence to suggest GH had
been placed under real and substantial pressure to
plead guilty

Making representations
 Often after taking the client’s instructions, counsel may make representations on
behalf of your client to the prosecution to review the case against the client.
o Strictly speaking, counsel can make representation any time after he has
received the client’s instructions – even before the accused is formally
charged in court.
o Representation should be addressed to Attorney-General’s Chambers and
copied to the investigating officer.
o Most commonly for the following reasons:
 To withdraw the charge against the client.
 To reduce the charge against the client to a lesser offence.
 To reduce the number of charges proceeded on with a view to taking
a certain course of action.

34
  In addition to written representations, oral representations may be made to the
prosecution immediately prior to a hearing or mention.
o This is usually resorted to only when counsel receives last minute
instructions from the client, or discovers new information that casts a
different light on the client’s case.
 PP v Knight Glenn Jeyasingam (1999)
o HELD: Court recognises the benefits of this process to optimise the use of
court and public resources.

defence’s case
 If the client wishes to plead guilty, counsel should make representations prior to
the plea, asking for either withdrawal, reduction, or for the prosecution to proceed
with a lesser charge.
o Representation must be based on the client’s instructions and personal
circumstances, including offering an explanation for why the client
committed the act alleged.
 If the client wishes to plead not guilty, counsel should prepare the case for trial,
advising the client on his legal position (i.e. whether the defence is recognised by
law) and how favourable it would be.
o Must be mindful of s 165, CPC 2010 on the Contents of Case for the Defence.
o Preparation for defence.
 Interview the client at length and obtain detailed instructions.
 Arrange the sequence of witnesses.
 Prepare the client and witnesses for EIC and XX.
 Consider whether to call for an expert witness and expert report (if
applicable) – must apply for subpoena early to give the expert
witness advance notice of the hearing.
 Collate exhibits, documents, photographs, and consider if any require
translation.
o Responsibility of defence is on the accused.
 PP v Quek Chin Chuan (2000)
 HELD: “When it comes to preparation for defence, it is the
accused’s own responsibility to look for his witness and
persuade them to testify on his behalf”.
 Note: Counsel engaged on behalf of more than 1 defendant in a criminal case must
consider whether there is a conflict of interest that might inhibit his proper and
effective defence of any one of them – any doubt must be resolved in favour of a
separate representation.
o The accused has a right to have his defence properly and effectively placed
before the court – this is an integral part of the accused’s right to a fair trial.

If counsel needs to use information obtained from the co-accused that he acquired when
dealing with the case, counsel should apply to discharge himself from acting for both
accused.

(6) GUILTY PLEA HEARINGS

Procedure: ss 227, 228 CPC

35
Attendance of the accused is required

 Where accused pleads guilty, important for the accused to be in attendance and be aware of the
consequences and facts he is pleading guilty to, unless his attendance is dispensed.
 S 154(2), CPC: Plead guilty by letter.
o In a summons case, the accused can be convicted and sentenced in his absence where an
offence is punishable by imprisonment of less than 12 months/ fine/ both if:
 Through his counsel.
 By letter and accused agrees to pay any fine that may be imposed.
 Note: However, if imprisonment is to be imposed, the accused must still attend in
person (s 154(8), CPC)
 s 226, CPC: Pleading guilty by Automated Traffic Offence Management Systems (ATOMS).
o Applies only to offences that the Minister may prescribe under s 226(7)(a), CPC

General Procedure at Plead Guilty Mentions

 [1] Charge is read out
 [2] Accused indicates whether he wishes to plead guilty, plea of guilt is then recorded if s 227(2), CPC is
satisfied.
o s 227(2)(a) CPC: If accused is in person – Before the Court records a plea of guilty, the Court
must be satisfied that the accused
 Understands the nature and consequences of his plea and the punishment prescribed
for the offence
 And intends to admit without qualification the offence alleged against him
o s 227(2)(b) CPC: If accused is represented by DC – Before the Court records a plea of guilty,
 The Court must record the advocate’s confirmation that the accused understands.
 [3] Prosecutor reads the Statement of Facts
 [4] Accused is asked to confirm if he admits to the Statement of Facts without qualifications
 [5] Judge delivers the verdict
 [6] PP will then read out the TIC charges (if any) for the accused’s consent for these charges to be
considered for the purpose of sentencing (s 148, CPC)
 [7] PP may read out the accused’s previous convictions, if any, and the accused confirms these
antecedents
 [8] PP may then address the court on sentence (s 228(1), CPC)
 [9] Court must then hear any plea in mitigation of sentence by the accused and the Prosecution has a
right of reply (s 228(3), CPC)
 [10] Judge may, after hearing the mitigation plea, at its discretion or on the application of the PP or the
accused, hear any evidence to determine the truth or otherwise of matters raised before the court which
may “materially affect” the sentence. (s 228(5), CPC)
o Done via a Newton hearing
 [11] Judge then pronounces the sentence immediately or on such day as it thinks fit (s 228(6), CPC)
 [12] After the accused is sentence, PP may apply for an order to forfeit the case exhibits (if any) under
s364(1), CPC, or under any written law for which the accused has been charged with
o If the accused has no objection to the application, the order for forfeiture is given, and items will
be returned to the rightful owner or to the state
o If accused objects to the application, a Disposal Inquiry date will be given

Fitness to Plead

s 227(2)(a) CPC: The court must be satisfied that the accused understands the nature and consequences of his
plea, the punishment prescribed for the offence and intends to admit to the offence without qualification:

36
Separate procedure if unfit to plead: ss 246-256 CPC
 s 247(1) CPC: When court has reason to suspect that accused is of unsound mind and consequently
incapable of making his defence, the court must investigate the fact of unsoundness:
 s 247(3) CPC: Court suspecting the accused to be of unsound mind may, on the application of the PP
made before the trial, send him to a mental hospital for observation (not exceeding 1 month)
o But the period may be extended to a further period of 2 months if no conclusion can be
reached –s 247(4), CPC

If the offender is certified to be of unsound mind and incapable of making his defence, court may:
 Release offender on bail where offence is bailable provided certain conditions are met
o Properly taken care of/ prevented from injuring himself
 Where offence is non-bailable, or if sufficient security is not given
o Accused will be confined in psychiatric institution or suitable place for safe custody

Court can proceed if

 S 254(1): Once he is certified to be fit to plead- Court can proceed with adjourned trial or inquiry
 S 248(2): Court has discretion to proceed with trial, even if psychiatrist is of view that accused was of
unsound mind and incapable of making his defence
o Provided that Court is satisfied that Accused is of sound mind and capable of making his own
defence

Statement of Facts

Mok Swee Kok v PP: No statutory requirement for a SOF, but is an “essential part of criminal procedure”
 Began as a matter of practice to assist judges to determine the appropriate sentence
 Has evolved into a legal duty on the court to record a SOF and to scrutinise the SOF for the explicit
purpose of ensuring that all elements of the charge are made out
 Not necessary for the accused to admit every fact in the SOF.
o Merely needs to admit to the essential ingredients of the offence

Accused must admit with qualification: Chota Bin Abdul Razak v PP

 Not necessary for the accused to admit every fact in the statement of fact, as long as what he does
admit contains all the essential ingredients of the offence and what he disputes is irrelevant or
immaterial.

If the SOF fails to disclose every element of the offence, the charge and/or the SOF must be amended
 Before mention
o The court can amend the charge or defective SOF itself /adjourn the mention directing
Prosecutor to amend the charge/ SOF; it cannot acquit the accused (PP v Soon Tiew Choon).
 After mention
o If only discovered after the mention, parties can apply to have the conviction quashed via
criminal revision: ss 400-403 CPC
 But it cannot be used as a backdoor appeal against conviction: Balasubramaniam
Palaniappa Vaiyapuri v PP
 The revisionary power of the HC should be exercised only if some serious injustice has
been caused: Chen Hock Heng Textile Printing v PP

37
  Must be manifestly plain that the offence charged is nowhere disclosed in
the SOF tendered
 Error must be so fundamental that the court should exercise its extensive
powers of revision.
 Chen Hock Heng Textile Printing v PP
 HELD: Statement of facts did not disclose the elements of the offence. High
Court exercised its powers of revision and quashed the conviction.
 Annis bin Abdullah v PP
 Victim was found to be 15 and not 16 years old
 Although this did not affect the conviction under s 377 PC, it affected
sentencing  Revisionary powers exercised
 Packir Malim v PP
 HELD: However, where statement of fact contains some inaccuracies, but the
petitioner is not prejudiced in any way, this does not ipso facto constitute
grounds for the High Court to exercise its revisionary jurisdiction.

Validity of Plea

S 227(2), CPC: The accused must understand the nature and consequences of his plea, and must intend to admit
without qualification the alleged offence
 Nature of the plea – Accused must know exactly what he is being charged for
 Consequences of the plea – Acc has to be aware of the punishment prescribed by the law so that he
knew the possible sentence he would receive upon conviction;

Test in determining validity of plea of guilt: Balasubramanian Palaniappa Vaiyapuri v PP (2002) citing Ganesun
s/o Kannan v PP -
1. Accused should plead guilty by his own mouth (and not counsel) –must ensure that it is the accused
himself who wishes to plea guilty
2. Onus lies on the court to ensure that accused understands true nature and consequences of his plea
3. Court must establish that accused intends to admit without qualification the alleged offence
 Qualified plea: If indicates a lack of mens rea/ actus reus, plea is qualified – will be rejected
o Ulaganathan Thamilarasan v PP
 Although he PG, he said in mitigation that the molest was unintentional i.e.
disowned intention and knowledge –doubt that he understood the nature and
consequences of his plea and that he intended to admit the offence without
qualification
 PP tried to explain to the accused during mitigation. Accused then withdrew his
initial mitigation and submitted another basis for leniency.
 Accused then got a counsel, and tried to quash the conviction on the basis that PG
was not valid because it showed that he was not aware of effect of pleading guilty.
 HELD: Conviction quashed. On the facts, court could not have been properly
satisfied that the accused understood the nature and consequences of his plea.
The failure to do so was not curable under s 423 CPC it caused an injustice since
the accused was unrepresented
 Rajeevan Edakalavan v PP
o HELD: the fact that the petitioner was not informed of his right to counsel or the defences
open to him did not make the plea any less valid

Retraction of Plea

38
(1) Court has discretion before sentence to record a plea of guilt and to substitute a plea of not guilty

 Discretion to reject plea must be exercised judiciously, and on proper grounds in the interests of justice
but no retraction of plea once the court is functus officio – i.e. once sentenced is passed, must use
criminal revision instead
 Court should record grounds on which discretion to retract plea is exercised (PP v Sam Kim Kai)
 Discretion to allow retraction of plea should be exercised in the accused’s favour if there was a mistake
or misunderstanding (R v McNally)
 Note: Same principles apply in considering validity of plea when accused is in person: s 227(2)(a) CPC
o Packir Malim v PP: Pleas by unrepresented persons are not more easily vitiated than by those
represented
o Rajeevan Edakalavan v PP: Not the duty of the judge or Prosecution to inform the AIP of
defences or other options that might be open to him and advantageous to his case
 Lee Weng Tuck v PP – retraction allowed
o The court had grave doubts as to whether appellants understood nature and consequences of
their pleas and that they intended to admit to the offences without qualification.
 Claimed they did not understand the charge, were not feeling well, and did not
realise they were pleading guilty to a capital charge
 Ganesan s/o Kannan v PP –not allowed
o Accused pleaded guilty. On date of sentencing, he got a new lawyer and applied for the plea
to be set aside, claiming that he PG earlier because he was unclear about the offence
o Court found no evidence for such assertions; accused had agreed to the statement of facts,
and no mention of such assertions was made during the tenure of the previous lawyer

(2) After Sentence Passed: File a petition of Criminal Revision and ask for Conviction to be set aside

 Yunani bin Abdul Hamid v PP

o HC’s revisionary power should be exercised sparingly and only if there is present the possible
existence of a serious injustice –factors to consider when exercising discretion
 [1] Court’s power of revision is to be exercised sparingly – the possible existence of a
serious injustice must be present before the court will exercise such power
 Hence, “if the evidence before the court indicates that the applicant's defence,
if the matter goes to trial, is hopeless or is doomed to fail, the court ought to
decline to exercise its power of revision.
 [2] Operative pressures: Serious injustice if the pressures faced by an offender to PG
are such that the offender did not genuinely have the freedom to choose between
pleading guilty and pleading not guilty”.
 [3] Even where a PG is made without any operative pressures on the accused, there
would be a serious injustice if the additional evidence before the reviewing court casts
serious doubts as to the guilt of the accused”.
 Thong Sing Hock v PP
o Court should whether the appellant's allegations, if true, would prima facie merit an exercise of
the court's revisionary powers
o Yes, then the court should, in its revisionary jurisdiction, take cognisance of the allegations
o Evidence of the truth of the allegations would only be relevant to the subsequent determination
of whether it was appropriate for the court to exercise its revisionary powers
o Nevertheless, if the accused's allegations were inherently unbelievable or unsupportable on the
facts, any investigation into such allegations would be an exercise in futility, and the court
should not take cognisance of them
 Gao Hua v PP: Accused

39
 o (a) Misled as to the consequences if she PG (fine): She had been wrongly advised and/or
misled by her then-counsel, Mr Tan, that only a fine would be imposed on her if she did so;
o (b) She had been placed under very real and substantive pressures by Mr Tan prior to and at
the time she pleaded guilty
 Lawyer told her on the day of the trial that the DPP had shown him some evidence
which revealed the Prosecution’s confidence in securing a conviction, and then advising
the applicant to plead guilty
 Told her on the same day that proceeding to contest the charges would cost her a huge
sum of money, as compared to a $3,000 to $5,000 fine at most if she PG;
 Reminded her of her desire to end matters and return home to visit her ill mother
 Used his seniority and experience as a means of persuasion
 Continued to persuade the applicant to plead guilty the next morning, despite the
applicant having expressed a desire to maintain her innocence, by suggesting that the
Prosecution could bring the eight existing charges against the applicant in sets of two
and putting the applicant to considerable expense in defending the multiple
prosecution
 She was sentenced to 10 months’ imprisonment, lawyer spoke to her briefly and told
her she would be jailed for at most 6-7 months, then left
o Court assessed totality of the situation to determine whether pressure weighed on her mind
resulting in PG.
 Seen in their singular contexts, each of the several alleged instances of pressure
might not have amounted to such but must have regard to the totality of
circumstances which indicated real overwhelming pressure to PG

(3) HC may also exercise its revisionary powers even when the Accused followed the wrong procedure (i.e. filed
appeal instead of CR)

Factual disputes following PG: Newton Hearing

 What is a Newton hearing?

o It is similar to that of a trial – witnesses will be called by both prosecution and defence, and
evidence supporting either versions will be tendered before the court.
 When is a Newton hearing required?
o It is required when there is a sharp divergence on a question of fact relevant to sentence.
o However, if the accused’s version differs so much from the prosecution’s version that it may
amount to a valid defence (i.e. qualifying a guilty plea), the proper forum to ascertain the
veracity of the accused’s version would be a full trial, not a mere Newton hearing.
 2 approaches when there is a sharp divergence on a question of fact.
o [1] Newton hearing – court hears evidence from parties and their witnesses and comes to a
conclusion.
o [2] Court hears no evidence from parties, but comes to a conclusion on the basis of submissions
of counsel.
 Benefit of the doubt to be given to the accused as far as possible when there is a
substantial conflict between the 2 sides.

English Position:
R v Smith – Where there is a substantial conflict as to the facts of the offence and the court is unwilling to
sentence on the basis of the accused’s version, it must hear evidence on the question, unless:
 The difference is immaterial to sentencing,

40
  The version put forth by the defence is absurd, wholly impossible, or obviously untenable, or
 D’s version does not amount to a contradiction of the Prosecution’s case,
 but relates to extraneous matters explaining the background of the offence or other
circumstances which may lessen the defence

Singapore position is largely similar to the English position:

PP v Soh Song Soon –Where the impact of the dispute on the eventual sentencing decision is minimal, the
Newton hearing is unnecessary
 Judge is also entitled to decline to hear evidence about disputed facts if the case advanced on Acc’s
behalf is to be regarded as absurd or obviously untenable
 On the facts: The Newton hearing could have been averted.
o Accused pleaded guilty to 4 charges of sexual assault.
o In mitigation, defence adduced medical report from a psychiatrist, and the prosecution
applied for a Newton hearing and called another psychiatrist.
o Did not require a contest of psychiatric evidence because this was not a case in which a
psychiatric condition was relied upon as a defence to the offences charged / a substantial
factor that led to the commission of the offences.
Ng Chun Hian v PP

 Accused pleaded guilty to housebreaking and sentenced. There were conflicting psychiatric reports
presented before the district judge. District judge did not hold a Newton Hearing.
 [1] Newton Hearing was the exception rather than the norm, and it must be done in order to resolve a
difficult question of fact that was material to sentencing
 [2] Here the allegations of kleptomania would be material to the determination of the sentence.
Newton Hearing held.

Taking charges into consideration: s 148, CPC

 S 148(1), CPC: Court can take into consideration any other outstanding offences that the accused admits
to have committed, with the consent of the prosecution and the accused
 PP v Mok Ping Wuen Maurice
o TIC charges might enhance the sentence
o Ultimately up to the court’s discretion on whether to consider the offence or not
o Courts consider the totality of the circumstances: and the fact that there are TIC charges does
not necessarily mean that the sentence will be enhanced

Prosecution’s address on sentence

 Prosecution can address the court on the sentence. (s 228(1), CPC)

 This includes considering the offender’s “criminal records” (s 228(2), CPC)
 Public Prosecutor v Tan Fook Sum
o HELD: The fact that the Prosecution did not make any submissions on the sentence did not
exempt the learned magistrate from considering whether a deterrent sentence was appropriate.
Ultimately the court has the discretion, and not the prosecution.
Mitigation of sentence

41
  After the prosecution addresses the court on the sentence, the court must hear a mitigation plea (s
223(3), CPC)
 Mitigation plea cannot qualify the guilty plea
 No scandalous allegations: r 14(7), PCR
 Burden of proof in mitigation is not as high than in a trial
o PP v Aniza bte Essa
 HELD: Sentencing process and a trial are materially different in their objectives.
Reasons for requiring strict proof by admissible evidence is not applicable during
sentencing. Limitations on evidentiary sources are different as well. The burden is not
as high as that which is required in trial.
 If the prosecution does not object to the assertions made by the defence, the court is
entitled to accept them and give such weight as it deems fit.
 Not desirable to lay down precise rules to micro-manage this area so criminal process.
 Psychiatric reports of the accused
o Psychiatric condition must have a causal connection with the offence that the accused is
convicted of.
o Idya Nurhazlyn bte Ahmad Khir
o Ng So Kuen Connie v PP
 Element of general deterrence could and should be given less weight if the offender
was suffering from a mental disorder (hypomania) at the time of the commission of the
offence.
 Bearing in mind the special facts of this case, the court found that the imprisonment
term of two months was manifestly excessive and substituted it with a fine of $250
o Goh Lee Yin v PP:
 The rehabilitation of the offender could also take precedence where other sentencing
considerations such as deterrence were rendered less effective, as might be the case
for an offender belabouring under a serious psychiatric condition or mental disorder
(kleptomania) at the time of the incident
 Hardship
o Lai Oei Mui Jenny v PP: Financial difficulties were rarely a mitigating factor
 Wife was divorced and sole breadwinner
 Being a single parent and sole bread winner is not a good basis for a lower sentence –
such a hardship cannot be one that would affect sentence.

Pronouncement of sentence & Consequential Orders

 Deferment of sentence
o S 318, CPC: The sentence of imprisonment shall take effect from the date it was passed, unless
the court passing the sentence or, when there has been an appeal, the appellate court
otherwise directs
o Apply to court by way of criminal motion to defer the sentence
o Paramount consideration was applicant’s reasons for such postponement (Loh Kok Siew v PP)
 Court should have regard to all the circumstances of the case, including (Loh Kok Siew)
 Length of time granted by the court in the first instance,
 Reasons given in support of that application in the first instance and
 Length of the additional time being sought.
 If attendant need for bail to be extended, the usual considerations with
respect to bail being granted following a conviction would also be relevant.
o Ralph v PP: relevant factors include gravity of the offence, offender’s
criminal record, if any, the possibility of the applicant offending or

42
 reoffending whilst at liberty and whether the security imposed will
ensure the attendance of the appellant before the appellate court.
 Ultimately, the court would be guided by whether the interests of justice require that
discretion be exercised to allow the applicant a further period of time before he serves
his sentence (Lim Teck Leng Roland)
 Court must take a robust approach and ensure that the discretion not be
abused by frivolous requests from the applicant.
 Burden is always on the applicant to show and explain that the circumstances
and conditions are of such a dire and serious nature or of such urgency that
they merit the exercise of discretion by the court to grant a further period of
time before he serves his sentence.
o Some reasons for further extension? (Lim Teck Leng Roland v PP)
 Court observed possible that during the period of extension, the applicant may suffer
from illness which necessitates treatment in hospitals or other places where better
facilities are available.
 It might be that a further extension would be justifiable as the applicant’s close relative
or a member of immediate family happened to suffer from serious illness.
o Loh Kok Siew v PP [2002]
 Accused was convicted. Given 2-month deferment because he was involved in the
construction of MRT stations and asked for a further deferment
 Was “rushing to complete the projects in time so as not to disrupt the opening
of the North-eastern line of the MRT”. He further stated that he had “been
instructed to personally supervise the works undertaken to ensure that the
MRT project will complete on time”
 HELD: Burden lay on the applicant to satisfy the court that the particular circumstances
and conditions in his case necessitated the court’s exercise of discretion.
 Second application for deferment was not valid— All that was before the court was the
applicant’s bare assertion that the subcontract works could not be completed on time.
Further, granting a further postponement of the sentence would send out a wrong
message that the interests of justice may be made subordinate to other considerations
o Lim Teck Leng Roland v PP
 After having been granted an order allowing him to delay the commencement of his
sentence of imprisonment by two weeks to settle personal and work matters, he
applied to court on the due date for an order that sentence be postponed for a further
two weeks.
 Fines – s 319, CPC:
o (1)(a) If the maximum sum is not stated in the law, the fine to which the offender is liable shall
be unlimited but must not be excessive
 Orders
o S 147(1): Where 2 or more charges are made against the same person, and he has been
convicted on one or more of them, the prosecution may, with the consent of the court,
withdraw the remaining such charge or any of the remaining charges
 (2) Such withdrawal shall have the effect of an acquittal on the remaining charge or
charges withdrawn unless the conviction is set aside.
 (3) Where a conviction is set aside under subsection (2), and subject to any order of
court setting aside the conviction, the court may proceed with the trial of the charge or
charges previously withdrawn.
o S364, CPC: Order for the disposal of property by court

43
 PRE-TRIAL MATTERS

Criminal Case Management System (CCMS)

 Applicable only for represented accused is on bail
o Note: Takes place in addition to CCDCs and PTCs (PTCs may be adjourned for CCMS)
o Note: Only where accused is represented
o Either Prosecution or Defence can suggest a CCMS meeting
 What happens at CCMS
o Meet and discuss their case
o Solicit and disclose information
o Assess the relative merits of their case
o Engage in plea bargaining
 Rationale—
o Expedite trial process
o Promote communication between prosecution and defence
o Meeting the interest of all parties
 Additional information disclosed at CCMS can help prosecution on whether to reduce
the charge, defence can get a greater understanding of prosecution’s case and how to
defend client
 CCMS meetings may be held at any time after the accused is charged, and ONLY between the prosecution
and defence

Disclosure and Criminal Case Disclosure Conference (CCDC)

Disclosure
 What to disclose? Unused material – Muhammad bin Kadar v PP
o HELD: Court held that duty to disclose unused materials exists at common law.
o Prosecution must disclose to the defence:
 Any unused material that is likely to be admissible and that might reasonably be
regarded as credible and relevant to the guilt or innocence of the accused.
 Any unused material that is likely to be inadmissible, but would provide a real chance of
pursuing a line of inquiry that leads to material
 That is likely to be admissible and that might reasonably be regarded as
credible and relevant to the guilt or innocence of the accused.
o Does not include material that is neutral or adverse to the accused – it only includes material
that tends to undermine the prosecution’s case or strengthen the defence’s case.
 Also, the duty applies only to unused material within Prosecution’s knowledge –
 No need for the prosecution to search for additional material.
 Does not extend to situation where relevant unused material exists but
Prosecutor is unaware
 Furthermore, there is no obligation where non-disclosure is recognised by any law (e.g.
Evidence Act)
o If prosecutor aware of disclosable material, he has a duty to disclose even if he is not assigned to
the case
 When to disclose?

44
 o Where material falls within the scope of ss 166 or 196, CPC 2012, they should be disclosed
within the timelines provided in the CPC 2012.
o For other cases (common law disclosure), before commencement of the trial.
o Continuing obligation to disclose, which only ends when the case is completely disposed of,
including any appeal.
 Further clarification in Lee Siew Boon Winston v PP [2015]
o Presumption of legality in relation to (non-)disclosure
o Presumption can be displaced if there were reasonable grounds to believe that the Prosecution
had failed to comply with its Kadar obligations
o If reasonable grounds, Prosecution must show that it has not breached its Kadar obligations
 Whether by way of reliance on law (e.g. non-disclosure due to the law) or otherwise
demonstrate compliance with obligations
 One way to demonstrate compliance would be to show the document in question to
Court (not defence) for it to study
 Unused Material liable to disclosure
o Witness Statements
o Co-Accused’s Statements
o Incident Reports
o Criminal Records
o Expert Reports
o Records compiled by law enforcement authorities:
 Field Diary
 Investigation Diary
 Station Diary
 Lock-up Diary etc.
 Consequences of non-disclosure is serious.
o Conviction overturned if such non-disclosure is material that occasions a failure of justice or
renders the conviction unsafe (Kadar)
o Defence should be given sufficient time to respond and Court may draw inferences or to order
an acquittal if appropriate (especially on appeal) (Winston Lee)
 Adjournment usually addresses the prejudice
o Courts will be slow to order a retrial (if only discovered on appeal)
 Prosecution has the burden of proving the case against the accused person;if the
Prosecution has failed to do so once, it should not ordinarily get a second chance to
make good the deficiencies of its case (Beh Chai Hock v PP)
o Prosecution will be acting in gross breach of their duties if they withhold material evidence.

CCDC

Pre-trial procedures in State Courts Part IX Sections 157 – 171

Pre-trial disclosure
under the CPC Pre-trial procedures in High Court Part X Sections 172 – 221
General provisions relating to pre-trial Part XI Sections 222 – 225
procedures in all Courts
 When will CCDC procedures apply?
o Automatic qualification under s 159(1), CPC.
 [a] Only for cases to be tried in the District Court; and
 See 7th column of 1st Schedule, CPC
 If e.g. shop theft with common intention under s 380 CPC –triable by MC or DC
– whether Prosecution decides it will be brought in DC or MC, it will be guided
by ss 7 and 8 of CPC which sets out the criminal jurisdictions of the MC and DC
(s 9 also relevant)

45
  [b] Applies to offences falling under the Second Schedule, CPC (Laws to Which Criminal
Case Disclosure Procedures Apply)3
 E.g. Penal Code, Misuse of Drugs Act, Sedition Act, etc.
o If within qualification, can opt-out under s 159(2), CPC
 Accused can inform court that he does not wish for the CCDC procedures to apply.
 Note: Need to inform on or before the first CCDC is to be held.
o If not within qualification, can opt-in under s 159(3), CPC
 Consent of all parties required for CCDC procedure to apply

 Where CCDC does not apply by virtue of s 159

o s 170, CPC: If CCDC procedures do not apply and the accused refuses to plead guilty/does not
plead guilty/claims trial, the court may:
 Proceed to try the accused immediately or on such date it directs.
 Transfer the case to another court of equal jurisdiction for trial.
o s 171, CPC: If CCDC procedures do not apply, the court may fix date for a PTC to be conducted –
i.e. PTC procedures apply automatically.

 s 160(3), CPC: Judge presiding over a CCDC must not hear/conduct the trial for that case.
 Procedure for CCDC
o s 160(1), CPC: Parties shall attend a CCDC as directed by court for purpose of settling:
 Filing of the case for the prosecution and case for the defence.
 Any issue of fact/law to be tried.
 List of witnesses to be called by the parties.
 Statements, documents, or exhibits to be admitted by the parties.
 Trial date.
o s 161(1), CPC: If CCDC procedures are applicable, court will fix 1st CCDC 8 weeks/earlier from
date where accused chooses not to PG (unless there are good reasons not to).
 s 161(2), CPC: At the 1st CCDC, if accused does not PG, PROSECUTION’S CASE must be
filed within 2 weeks with the court.
 s 162, CPC: Contents of the Prosecutions’ case must contain –
o Charge/s
o Summary of facts
o List of Prosecution witnesses
o List of exhibits which P intends to be admitted at trial
o Statements of accused which P intends to be adducced in evidence as
part of its case
o s 161(4), CPC 2012: Court will fix 2nd CCDC within 7 days after Prosecution’s case is filed.
 s 163(1), CPC: At the 2nd CCDC, if the accused does not plead guilty, Defence’s case
must be filed within 2 weeks with the court.
 s 165, CPC: Contents of Defence’s case must contain
o Summary of Defence and facts in support of defence
o List of witnesses for Defence
o List of exhibits
o Objections made to any issue of fact or law in Prosecution’s case
 If accused is unrepresented,

3
Arms and Explosives Act (Cap. 13)
2. Arms Offences Act (Cap. 14) 12. Misuse of Drugs Act (Cap. 185)
3. Banishment Act (Cap. 18) 13. Oaths and Declarations Act (Cap. 211)
4. Computer Misuse and Cybersecurity Act (Cap. 50A) 14. Official Secrets Act (Cap. 213)
5. Corrosive and Explosive Substances and Offensive Weapons Act (Cap. 65) 15. Passports Act (Cap. 220)
6. Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap. 65A) 16. Penal Code (Cap. 224)
7. Criminal Law (Temporary Provisions) Act (Cap. 67) 17. Prisons Act (Cap. 247)
8. Hijacking of Aircraft and Protection of Aircraft and International Airports Act (Cap. 124) 18. Protected Areas and Protected Places Act (Cap. 256)
9. Immigration Act (Cap. 133) (other than sections 6 and 15) 19. Public Entertainments and Meetings Act (Cap. 257)
10. Internal Security Act (Cap. 143) 20. Public Order (Preservation) Act (Cap. 258)
11. Maintenance of Religious Harmony Act (Cap. 167A) 21. Securities and Futures Act (Cap. 289)
22. Sedition Act (Cap. 290)
23. Vandalism Act (Cap. 341).
46
  Objection to issue of law not needed (s 165(2))
 Court must explain to the accused (s 164)
o Requirements of s 163(1) (Defence’s case)
o Effect of s 166 (Prosecution’s obligation to serve other statements
and exhibits upon service of Defence’s case) and
o Consequences provided under s 169(1) (court may draw adverse
inferences; DNAQ)
o s 163(2), CPC: Court may fix 3rd CCDC to be held after the filing of Defence’s case and
Prosecution served other statements and exhibits on Defence.
 i.e. “Secondary service” by Prosecution (s 166, CPC) – Prosecution’s documents to be
served on Defence within 2 weeks from service of Defence’s case
 Documents include:
o s 166(1)(a): All other statements given by accused in relation to the
proceeded charge
o s 166(1)(b): Documentary exhibits referred to in list of exhibits under
s 162(d)
o s 166(1)(c): Accused’s criminal records, if any, upon payment of the
prescribed fee
 No corresponding obligation placed on Defence to disclose documentary
exhibits listed in List of Exhibits which forms part of Defence’s case
 If Defence’s case not served on prosecution, Prosecution need not provide
secondary service and may use any of the statements/ material at the trial.
(s166(2))
 s 167, CPC: At 3rd CCDC, if accused does not plead guilty, trial date will be fixed.

 Consequences of non-compliance with CCDC procedure

o s 169(1): Court may draw inferences as it thinks fit if
 Case for Prosecution/ Defence not served
 Case for Prosecution/ Defence does not contain specified items
 Prosecution/Defence puts forward a case which differs from or is inconsistent whit the
Case filed
o s 169(2): If Prosecution’s case is not served within time permitted under s 161, or if
Prosecution’s case does not contain any part of the items specified in s 162, court may order
discharge not amounting to an acquittal

General provisions –adjournment/extensions of time

 Either Prosecution/ Defence may ask for the matter to be adjourned pursuant to s 238(1), CPC, and
another CCDC may be fixed (‘reasonable cause’ required)
 Any party to a CCDC may at any time apply to the court for an extension of time/ further extension of
time to file or serve any document: s 223(1)
o S 223(2): Applications for an extension of time to file/serve documents must be heard in the
presence of all parties to the CCDC

Pre-Trial Conference (PTC)

 PTC is a judicial initiative and a case management tool introduced to “settle any administrative matter in
relation to a trial”.
o Benefits of the PTC system.
 Better oversight of the progress of the case.
 Effective judicial management of cases to prevent delays.
 Effective case prioritisation.
 Optimising court resources.

47
 o Practices, procedures and objectives of the PTC system.
 Resolution of issues by way of a plea of guilt or otherwise.
 Identify and narrow issues at trial.
 Identify admissions and agreement on facts.
 Estimate duration of trial – e.g. number of days.
 s 171, CPC: When will PTC procedures apply?
o Only apply if CCDC procedures do not apply or if accused decides to PG to the charges
proceeded against him at the first mention.
 How are PTCs scheduled?
o Cases generally stay in the Mentions Courts for about 6 – 8 weeks before they proceed to PTC if
the accused claims trial or is not otherwise prepared to plead guilty, or the prosecution is not
ready.
 However, for “fast-track” cases where the accused is in remand, PTC may be fixed as
early as 1 week from the first mention.
o PTCs may be adjourned for Criminal Case Management System (CCMS).
 What do PTCs seek to ascertain?
o Courts would ascertain (claim trial cases)
 Number of witnesses each party will be calling.
 If Prosecution will be using any accused’s statements as part of its case, and if so,
whether any challenge to the admissibility on voluntariness.
 If parties are agreeable to using “conditioned statements” for less contentious
witnesses (s 264(1))
 If video-link facilities are required when vulnerable witnesses give evidence.
 Whether parties arranging for CCMS

For cases to be tried in the High Court

Note these provisions are for State Courts, for High Court:
 Does offence have to be specified under 2nd Schedule CPC
 s 176: Prosecution and accused shall attend a CCDC as directed by a court for the purpose of settling the
following matters:
o (a) Charge that the prosecution intends to proceed with;
o (b) Whether accused intends to PG/ claim trial; and
o (c) Date for the holding of a committal hearing.
 S 176(3): If accused intends to PG to an offence punishable with death/ intends to claim trial,
o s 176(3)( (a): Court shall fix a date for the committal hearing
o s 176(3)(b): Prosecution must file in court the PROSECUTION’S CASE and serve a copy on
accused and every co-accused, not less than 7 days before date fixed for committal hearing
 S 176(4): Contents of Prosecution’s case
 S 192(1): After accused committed to stand trial in HC, Registrar of Supreme Court shall hold a CCDC not
earlier than 7 days from the date the record of the committal hearing has been served on parties
o If at the CCDC, accused does not indicate that he wishes to PG (s 193(1))
 DEFENCE’S CASE is to be served on Prosecution and on every co-accused who is
claiming trial with him– 2 weeks from date of CCDC
 S 195(1): Contents of Defence’s case
o If Defence is unrepresented (s 194)
 Court must explain to him what he may do under s 193(1) (Defence’s case), effect of s
196 and consequences provided under s 209
 S 193(3): Registrar may at any time fix a date for further CCDC to be held after Defence’s case is filed and
after Prosecution is to serve on Defence copies of the statements and crimianl records
o s 196(1) After Defence’s case served on Prosecution,

48
  Prosecution must within 2 weeks from date of service, serve on accused accused’s
statements in relation to proceeded charge and criminal records
o if at the further CCDC, accused does not PG, Registrar may fix date for trial
 s 193(2): If accused does not wish to file Defence’s case, Registrar may fix a date for trial in the HC
 Consequences of non-compliance (s 209) –court may draw inferences if
o Case for Prosecution/Defence does not contain items specified
o Prosecution/ Defence puts forward a case at trial which differs from Case for Prosecution/
Defence filed

 Under the old CPC, all High Court trials are preceded by a Preliminary Inquiry
o Purpose was to ascertain if there is “sufficient evidence” to commit the accused for trial before the High Court
 Now under the new CPC, there is a dual track to bring a case from Court 26 to the High Court.
o S175(1), CPC 2012: Before case is tried in the High Court, committal procedures or transmission procedures shall apply
 Committal Procedure—Part X, Div 2, CPC 2012
 Transmission Procedure—Part X, Div 5, CPC 2012
 When to go for committal hearings and when to go for a transmission
o Committal Hearings:
 S175(2), CPC 2012: Committal hearing shall be held where an accused is to be tried in the High Court
o Transmission:
 S175(3), CPC 2012: Transmission applies for offences specified in the Third Schedule, CPC 2012, to be tried in
the High Court
 S175(4), CPC 2012: Where an accused is tried at the same trial for an offence specified in the Third Schedule,
CPC 2012 and another offence not specified in the Third Schedule, CPC 2012 and not punishable by death,
transmission shall apply to both offence
o Where one offence specified in the Third Schedule, CPC 2012, and another not specified in the Third Schedule, CPC
2012 but is punishable by death
 S175(5), CPC 2012: Transmission applies to the former but a committal hearing shall be held for the latter.
o Third Schedule, CPC 2012: s375-377B of the Penal Code

Committal Hearings
 Applies for all non-transmission cases (it is the default procedure)
 Governed by s176-s209, CPC 2012
 Preceded by the CCDC process
 S177, CCPC: Presided over by a Magistrate (usually an Assistant Registrar of the High Court gazetted)
 Procedure for Committal Hearings:
o [1] 1st CCDC is held between Prosecution and the accused to settle the following:
 s176(1), CPC 2012:
 (a) The charge the prosecution wishes to proceed with
 (b) Whether the accused intends to plead guilty or claim trial
 (c) Date for holding of a committal hearing
o [2] Case for the Prosecution to be filed and served not less than 7 days before the committal hearing (s176(3)(b), CPC
2012)
 Contents of the case for the prosecution (s176(4), CPC 2012)
 (a) The charge
 (b) List of names of witnesses for the prosecution
 (c) List of exhibits that are intended by the prosecution to be admitted at trial
 (d) Statements of witnesses
 (e) Any statement made by the accused at any time and recorded by an officer of a law
enforcement agency that the prosecution wishes to adduce as evidence for the prosecution’s case
o [3] s183, CPC: Accused can then also make his defence by a statement under s179, CPC.
o [4a] After going through the statements, the Magistrate must be satisfied that there is “sufficient evidence” to commit
the accused for trial (s185(b), CPC)
 Upon committal, charge read and caution administered: s181, CPC
 If there are insufficient grounds, accused must be discharged: s180(1), s185(a), CPC
o [4b] Where accused pleads guilty
 Non-capital charge:
 S178(1), CPC 2012: Magistrate shall proceed to record the facts of the case presented by the
prosecution. If the elements of a charge are made out, then the Magistrate must ensure that the
accused understands the nature of the charge and intends to admit the facts without qualification.
 Then, can commit the accused for trial.
 Capital charge
 S178(2), CPC 2012: Magistrate shall hear all evidence tendered by the prosecution and the
defence (incl written statements in s179, CPC 2012) and satisfy himself that the statements
disclose sufficient evidence for him to commit the accused to trial for the offence.

49
  After that: fix date for a plea of guilt to be taken (s178(3), CPC 2012)
o [5] s192, CPC 2012: 2nd CCDC held not more than 7 days from the date the record of Committal Hearing is served on
parties under s188, CPC 2012
 s192(2), CPC 2012: Purpose of 2nd CCDC:
 (a) Filing Case for the Defence
 (b) Issues of fact or law to be tried by the judge
 (c) List of witnesses
 (d) Statements, documents or exhibits that the parties intend to adduce
 (e) Trial date
o [6] s193(1), CPC 2012: Case for the Defence to be served not later than 2 weeks from the 2 nd CCDC date.
 Contents on the Case for the Defence: s195, CPC 2012
 (a) Summary of the defence to the charge
 (d) List of witnesses for the defence
 (c) List of the exhibits the defence intends to use
 (d) Objection to any issue of fact or law
o [7] s196, CPC 2012 After Case for the Defence is served, PP must serve supplementary bundle within 2 weeks of the date
for the service of the Defence
 Contents of the supplementary bundle:
 S196(1)(a), CPC 2012: All other statements
 S196(1)(b), CPC 2012: Criminal records, upon payment of the prescribed fee
o [8] s193(2), CPC 2012: If no Case for the Defence is to be served, Registrar may fix trial dates.
 S196(2), CPC 2012: PP need no serve supplementary bundle
o [9] s193(3), CPC 2012: 3rd CCDC may be held to fix trial dates

 CCDC process also applies to transmission cases

o See s212-219, CPC 2012
Appealing to CCDC Orders – s404, CPC 2012
o S404(1), CPC 2012: Appeals for CCDC orders are done by way of criminal revision
o S404(2), CPC 2012: Application must be made within 7 days of the order
 Miscellaneous provisions regarding the CCDC
o S186, CPC 2012: Bonds of Witnesses
 (1) Witnesses for both the prosecution and the defence must sign a bond to secure their attendance to give
evidence in court
 (2) Failure to execute such a bond will cause the witness to be committed to prison, or to give security that he
will give evidence at trial.
o S188, CPC 2012: Procedure after committal of accused for trial
 (1) Record of committal hearing proceedings shall be sent to the PP and the accused
o S189, CPC 2012: Custody of accused pending trial
o S190, CPC 2012: Restrictions on reports of committal hearing
 (1) Unlawful to publish a report of any committal hearing containing any matter other than that permitted by
s 190(4), CPC 2010 (e.g. identity of the court, name of examining Magistrates, names, occupations and ages
of the parties, offences, names of advocates, etc.).
 (5) Liable on conviction to a fine not exceeding $5,000.
 Case law on committal hearings.
o Duty of the Magistrate.
 PP v Tan Kim Kang (1962)
 HELD: Court sets out the duty of the Magistrate at a [committal hearing].
o “… to see whether there is any evidence of any offence which is triable in the High
Court, and if there is, he is duty bound to commit the accused person for trial”.
o “It is not his duty to weigh the evidence as if he was trying the case – his duty is either
to commit the accused for trial or to discharge him”.
 PP v Puspanathan (1996)
 Discrepancies between witnesses.
 HELD: Magistrate should not assess discrepancies. He should simply commit for trial and leave the
weighing of the testimony to the trial judge.
 See also PP v Tan Choon Ang (1990), Re Low Kuan Meng (1962) and Re Pang Poh Pah (1985).
o Discharge on the 1st committal hearing is no bar to the PP bringing a 2nd committal hearing on the same facts.
 Mary Shim v PP (1962)
 Accused was discharged after the initial [committal hearing] and the PP then applied to have a 2 nd
[committal hearing] on the same facts and the accused was committed.
 HELD: Court held that this was acceptable because it was within the power of the PP, and was fully
justified on the circumstances of the case.
o Order for committal is not appealable because it is not a final order (Indran v PP (1985)).
o Purpose of the committal hearing is just to enquire into the sufficiency of evidence.
 PP v Ketmuang (1995)

50
  HELD: Hence, preliminary records should not be evidence before the trial court, save in
exceptional circumstances.

Transmission
 Procedure:
o [1] s210(1), CPC 2012: PP shall designate the High Court to try the case by fiat, when the PP is of the opinion that there
is sufficient evidence for a full trial
o [2] s210(2), CPC 2012: Magistrate’s Court receives the fiat
o [3] s210(2), CPC 2012: Cause the charge to be read and explained to the accused, and thereafter
 (a) Transmit the case to the High Court for the purpose of trial; and
 (b) Order that the accused shall be remanded in custody until and during trial, unless he is released on bail.
 After case has been transferred to the High Court
o Procedure: s212, CPC 2012
 [1] Prosecution and accused shall hold the 1st CCDC not earlier than 4 weeks form the date of transmission
 Purpose:
o (a) Filing the Case for the Prosecution and the Case for the Defence;
o (b) Any issues of fact or law which are to be tried by the trial judge at the trial proper;
o (c) The list of witnesses to be called by the parties to the trial;
o (d) The statements, documents or exhibits which are intended by the parties to be
admitted at the trial; and
o (c) The trial date
 [2] s 213(1), CPC 2010: At the 1st CCDC, if the accused does not plead guilty, the prosecution’s case must be
filed within 2 weeks with the court.
 s 214, CPC 2010: Contents of the case for the prosecution must contain – the charge, summary of
facts, list of witnesses, list of exhibits, statements of accused to be adduced as part of the
prosecution’s case.
 [3] s 213(3), CPC 2010: Court will fix 2nd CCDC not earlier than 7 days after case for the prosecution is filed.
 s 215(1), CPC 2010: At the 2nd CCDC, if the accused does not plead guilty, the defence’s case must
be filed within 2 weeks with the court.
 s 217(1), CPC 2010: Contents of the case for the defence must contain – summary of facts, list of
witnesses, and objections made to any issue of fact or law in the prosecution’s case (objection to
issue of law not needed if accused is unrepresented).
 [4] s 215(2), CPC 2010: Court may fix 3rd CCDC to be held after the filing and after the prosecution served
other statements and exhibits on the defence.
 See s 218, CPC 2010 for the prosecution’s documents to be served on the defence within 2 weeks
from the service of the case of defence.
 s 219, CPC 2010: At the 3rd CCDC, if the accused does not plead guilty, trial date will be fixed.

8- The Trial

Before the trial

 Defence must give notice of alibi to the prosecution.
o Alibi evidence is a special category of defence – under s 278(1), CPC 2010,
evidence in support of an alibi may not be called unless the appropriate notice
of ability has been given to the prosecution prior to the commencement of the
trial.
 Rationale – so that prosecution can verify the accused’s account such
that it is able to challenge it.
 Syed Abdul Mutalip bin Syed Sidek v PP (2002)
 HELD: Defence of alibi should be disclosed to the prosecution at
the earliest opportunity to give the prosecution time to
investigate the defence, and not sprung midway through trial.
 However, the court has discretion to grant leave to allow alibi evidence
to be adduced in the absence of appropriate notice of alibi.

51
  Lee Choon Chee v PP (1996)
o HELD: Discretion to be exercised judiciously, based on the
facts and circumstances.
o ss 278(5) to (7), CPC 2010 highlights the manner in which notice of alibi is to be
given.
 (5)(a): To the court when the accused is first charged in court.
 (5)(b): In writing to the PP, or to the officer in charge of the prison to
forward to the PP, within 14 days from the date the accused is first
charged.
 (7): Notice to be given to the PP may be delivered to him, left at his
office, or sent in a registered letter addressed to him at his office.
o Notice cannot be retrieved – retraction of alibi defence can count as a previous
inconsistent statement that the prosecution is entitled to use.

 Parties must disclose list of witnesses and exhibits at the CCDC – see s 160(1)(c), CPC
2010.
o s 231(1), CPC 2010: If not earlier disclosed, witnesses or exhibits can be
called/produced only if prior notice in writing to the court and other parties
were given in writing.

 Summons to witnesses must be in Form 38, and served in the appropriate manner – see
ss 115 and 116, CPC 2010.

 Prosecution must serve documents in the Prosecution’s Case on the defence – see ss
161 and 166, CPC 2010.

 Parties may apply for evidence to be given through a live video or live television link –
see s 281, CPC 2010.
o For vulnerable witnesses – e.g. victims of sexual offences or child witnesses.

 Parties may apply for in-camera hearings – see s 7(2), Subordinate Courts Act and s
153(3), Women’s Charter.

 Where counsel acts for 2 accused persons in the same matter, counsel must consider
potential conflicts of interest.
o E.g. if counsel needs to use information obtained from a co-accused against an
accused, counsel should apply to discharge himself from acting for both accused
– under r 25, LPPCR, counsel may not further another person’s interest over that
of his client.

Procedure at trial
 The procedure where an accused person refuses to plead, does not plead, or claims
trial is set out in s 230(1), CPC 2010.

52
 o The procedure for trial laid out is comprehensive and mandatory.

 s 230(1), CPC 2010: The following procedure must be complied with at the trial in all
courts:
o (a) At commencement, charge must be read and explained to the accused and
plea taken.
 (b) If accused pleads guilty, follow procedure in s 227, CPC 2010.
 (c) If accused refuses to plead, or does not plead, and claim trial, court to
hear case.
o (d) Prosecution opens his case and shortly states the nature of the offence and
evidence to prove case.
o (e) Prosecution then examine witness, defence can cross-examine, and
prosecution re-examine.
o (f) Defence may invite court to dismiss case on grounds of no case to answer,
and prosecution can reply.
o (g) Court can alter charge, frame a new charge, following procedure in ss 128 –
131, CPC 2010.
 (h) If accused pleads guilty, follow procedure in s 227, CPC 2010.
 (i) If accused refuses to plead, or does not plead, and claim trial, court to
continue hearing.
o (j) If charge seemingly satisfied with evidence, court must call on accused to give
defence.
 (k) If no such evidence, court must order discharge amounting to
acquittal.
 (l) If charge groundless, court can also order discharge amounting to
acquittal.
o (m) Court must inform the accused that he will be called upon to give evidence
in his own defence, and the consequences if he refuses to.
o (n) Accused can choose to give defence, following procedure in (o), (p), (q).
o (u) Accused sums up his case.
o (v) Prosecution has final right of reply on the whole case.
o (w) If court finds accused not guilty, court must order discharge amounting to
acquittal.
o (x) If court finds accused guilty, court must record conviction and comply with
procedure in s 228, CPC 2010, and then pass sentence.

Case for the prosecution

 Opening address.
o ss 230(1)(d) and (e), CPC 2010: Opening address is not mandatory, and the
prosecution may proceed to adduce evidence.

 Calling of witnesses.
53
 o Prosecution has unfettered discretion to summon or use any witness.
 However, unexplained failure to call a potentially material witness could
lead to an adverse inference.
o Offering witnesses – if prosecution does not use a witness after summoning
them, the practice is for the prosecution to tender him for cross-examination or
offer him to the defence (Teh Lee Tong v R (1956)).

 Witnesses are examined in accordance with ss 137 – 168, EA.

o [1] Examination-in-chief (EIC).
 s 140(2), EA: EIC must relate to relevant facts.
 s 144(1), EA: No asking of leading questions during EIC.
 Admission of:
 Exhibits and scientific reports – see s 263, CPC 2010.
 Computer output – see ss 35 and 36, EA.
 s 161, EA: Refreshing memory from written statements allowed.
 s 163, EA: Adverse party has the right to inspect such written
statement.
o [2] Cross-examination (XX).
 s 140(2), EA: XX must relate to relevant facts but such facts are not
confined to matters raised in EIC.
 ss 143 – 145, EA: Leading questions may be asked during XX subject to
qualifications.
 Other questions permissible during XX – see ss 148 and 150, EA.
 To test his accuracy, veracity or credibility.
 To discover who he is and what is his position in life.
 To shake his credit by injuring his character.
 Restrictions on questions that may be asked during XX – see ss 151 –
154, EA.
 Cannot ask anything unless there is reasonable grounds.
 Cannot ask indecent or scandalous questions.
 Cannot ask anything intended to insult or annoy.
 Putting of case.
 Rule in Browne v Dunn (1893) and the significance of failure to
XX.
 Rule in Browne v Dunn:
o The cross-examiner cannot rely on evidence that is
contradictory to the etestimony of the witness without
first putting the evidence to the witness in order to allow
them to attempt to justify the contradiction

o Liza bte Ismail v PP (1997)

 HELD: Central purpose of the rule is simply to
secure procedural fairness in litigation. It ensures
that contradictory facts are put to the witness

54
 during XX to give the witness an opportunity to
respond – this is because any testimony left
unchallenged may be treated by the court as
undisputed and therefore accepted.
 Suggesting.
o [3] Re-examination of witness (ReX).
 s 140(3), EA: ReX to be confined only to matters raised during XX.

Close of prosecution’s case & No case to answer submission

 After all the prosecution witnesses have given their evidence, the prosecution will
inform the court that the prosecution is closing its case.
o At this stage, the defence may make a submission that the evidence does not
disclose a case to answer.

No case to answer
 No case to answer submission must not to be made for the sake of it – not often made
in practice as threshold is low.
o s 230(1)(j), CPC 2010: Before the accused is asked to enter a defence, the
prosecution must establish a prima facie case against the accused – the court
must be of the view that there is some evidence which is not inherently
incredible and which satisfies each and every element of the charge.
 s 230(1)(j), CPC 2010 incorporates the Haw Tua Tau v PP (1981) test –
the court has to decide whether the prosecution has made out a prima
facie case, which, if unrebutted, would warrant a conviction of the
accused.

 Test at close of prosecution’s case – requirement of prima facie case (only).

o The court is not concerned with whether the prosecution has proved the case
“beyond a reasonable doubt”.
o Sarjit Singh Sarpato v PP (2005), Tan Wei Yi v PP (2005)
 HELD: The phrase “if unrebutted” means that the court has to consider
the weight of the evidence.
 Evidence by the prosecution must not be inherently incredible.
 Inferences drawn by the prosecution must be reasonable.
 Discrepancies between the prosecution’s witnesses’ testimonies will be
considered as to whether such discrepancies are material.
o PP v Annamalai Pillai Jayanthi (1998)
 HELD: Court has to consider veracity and accuracy of the evidence.
 Must consider whether mere presence of inconsistences render
the prosecution’s case manifestly unreliable – i.e. whether the

55
 inconsistencies are sufficiently fundamental to nullify part of the
evidence supporting the charge.
o PP v IC Automation Pte Ltd (1996), Chai Chien Wei Kelvin v PP (1999)
 HELD: Court has to consider the totality of the prosecution’s evidence –
cannot just pick out the good stuff and leaving the bad behind when
deciding.
 Where prima facie case not satisfied.
o s 230(1)(k), CPC 2010: If court finds that no case against the accused has been
made, it shall order an acquittal.
 Where prima facie case is satisfied.
o s 230(1)(j), CPC 2010: The court will call upon the accused to enter his defence.
 Where evidence at close of prosecution’s case make out a different charge.
o s 128(1), CPC 2010: Court may alter or frame a new charge at any time before
judgment is given.
o Procedural safeguards when charge is altered/new charge framed.
 s 128(2), CPC 2010: Such charge must be read and explained to the
accused.
 s 129(1), CPC 2010: Plea to be taken on new charge, and accused to state
if he is ready to be tried.
 ss 129(2) and (3), CPC 2010: If accused is not ready, court must
consider any reasons he gives, and must determine if proceeding
with trial immediately will prejudice him.
 s 129(4), CPC 2010: Court can direct new trial/adjournment if
proceeding immediately is likely to cause prejudice.
 s 130, CPC 2010: If new charge requires the PP consent, trial not to
proceed until consent is obtained.
 s 131, CPC 2010: Parties can recall witnesses.

Case for the defence

 s 230(1)(j), CPC 2010: If the accused does not make a submission of no case to answer
or if such submission fails, the court will call upon him to enter his defence.

 Calling on accused to give defence.

o Court must tell the accused that he will be called upon to give evidence.
o Accused may decide to remain silent when called upon – this is his prerogative.
o However, counsel must warn the accused of ss 230(1)(m) and 261(1), CPC 2010,
where the court may draw adverse inferences from the accused’s refusal to give
evidence.
 PP v Took Leng How (2005)
 Accused remained silent, and defence argued that he was
suffering from schizophrenia, and thus, under s 261(1), CPC 2010,
the court may not draw any adverse inference.

56
  HELD: Court held that the accused could still have given evidence
of what he was doing at the time of the offence, and thus drew
an adverse inference.
 Note: Approved by the Court of Appeal, but the court
nevertheless cautioned that not every accused who is certified to
be fit to plead is susceptible to an adverse inference if he elects
to remain silent as there may be circumstances where such
drawing may still be unwarranted (e.g. if the accused exhibits
certain mental of physical symptoms in the court of the trial).
 PP v Tse Nathan (1992)
 HELD: Court held that the accused’s choice to remain silent “did
not assist his defence in any manner or form”, but conversely,
“gives rise to an inference that he knew or ought to have known
that the substance he was carrying were drugs”.
 Oh Laye Koh v PP (1994)
 HELD: “What inferences are proper to be drawn from an
accused’s refusal to give evidence depend upon the
circumstances of the particular case, and is a question to be
decided by applying ordinary common sense”.

o s 291(1), CPC 2010: Accused can only give evidence on oath or affirmation, and
if he does so, he is liable to cross-examination.
 s 291(3), CPC 2010: If accused refuses to be sworn, to be affirmed, the
court can draw adverse inference in deciding whether the accused is
guilty of the offence.
o s 291(3), CPC 2010: If having been sworn or affirmed, the accused refuses to
answer any question without good cause, the court can draw adverse inference
in deciding whether the accused is guilty of the offence.

o Where accused elects to give evidence, must follow the procedure in ss 230(1)
(p) – (r), CPC 2010.
 Accused may also call witnesses to give evidence in his defence.
 s 230(1)(p)(i), CPC 2010: If accused chooses to testify in his own defence,
he must do so before he calls any other witnesses to give evidence on his
behalf.
 This is to avoid allowing the accused to tailor his evidence to suit
that of his other witnesses.

Close of defence’s case & Recalling of witnesses

 s 230(1)(t), CPC 2010: At the close of the defence’s case, the prosecution may call a
person as a witness or recall and re-examine a person already examined, for the
purpose of rebutting any aspect of the defence case.

57
 o Court will only permit this if prosecution was misled or taken by surprise.
 The prosecution cannot recall rebuttal evidence merely to confirm its
case.
 The prosecution is also not allowed to call rebuttal evidence merely
because the defence appeared to have succeeded in calling evidence to
refute the prosecution’s case.

o Discretionary provision.
 s 283(1), CPC 2010: Court may summon and examine, or recall and re-
examine any witness, on its own motion, or on the application of the
prosecution or the defence.

o Imperative provision.
 s 283(2), CPC 2010: Court must summon and examine, or recall and re-
examine, a witness if his evidence “appears to the court essential to the
just decision of the case”.

 Recalling of witnesses in an ancillary hearing.

o s 279(6), CPC 2010: Court may allow any witnesses (in an ancillary hearing) to be
recalled in the interest of justice.

 Recalling of witness after amendment of charge.

o s 131, CPC 2010: Prosecution and accused is allowed to recall and re-examine
any witness, unless the court thinks the application is frivolous, vexatious, or
meant to cause delay or frustrate justice.

Closing submissions & judgment

 Defence to first make closing submissions followed by prosecution.
o Submissions can be given either orally or written.
o Both parties will be allowed to exchange their submissions and allowed to reply
to the other’s submissions.
o s 230(1)(v), CPC 2010: Prosecution shall have the final right of reply on the
whole case.

Burden of proof
 Case against accused must be proved beyond a reasonable doubt.
o s 104, EA: Burden lies squarely on the prosecution (Sakthivel Punithavathi v PP
(2007)) to prove the accused’s guilt beyond a reasonable doubt.

o Burden of proof is on the defence when the accused alleges certain things.

58
  s 105, EA: Burden of proof of any particular fact lies on the party that
asserts it.

o Burden of proof is on the defence to prove certain defences.

 s 107, EA: Accused bears burden of proof for general exceptions (e.g.
intoxication, mistake of fact, etc.) or any special exceptions to any
particular offence (e.g. for murder, it’s grave and sudden provocation,
private defence, etc.).

Judgment
 s 230(1)(w), CPC: If court finds accused not guilty, court must order discharge
amounting to acquittal (provided that there are no other charges pending against him).

 s 230(1)(x), CPC: If court finds accused guilty, court must record conviction and comply
with procedure in s 228, CPC (e.g. mitigation), and then pass sentence.

(9) INVESTIGATION AND CAUTIONED STATEMENTS

Types of statements
 First Information Reports (FIRs)
 Statements satisfying the conditions in s 264, CPC– conditioned statements
 Statements recorded during investigations – s 22(1), CPC (long statements)
 Statements recorded at the point the accused is charged – s 23(1), CPC (cautioned statements)

Long Statements (s 22(1), CPC)

 s 18(1): Power to record long statements exercisable upon receipt of FIR disclosing an arrestable offence.
o s 16(2): If offence is non-arrestable, order of the Magistrate or PP is required.
 s 22(1), CPC: Police officer may examine orally any person whom he believes to be in possession of some
knowledge on the facts and circumstances of the case under investigation.
 s 22(2), CPC: Person examined must state truly what he knows but he may decline to say anything that
may expose him to a criminal charge, penalty, or forfeiture.

Who can the statement be taken from?

 From both witnesses and accused persons.
o “Any person” who appears to be acquainted with any of the facts and circumstances of the case
in s 22(1), CPC includes an accused person

Who can record a statement under s 22(1), CPC?

 Only a “police officer”.
o Criminal offences are investigated by many other law enforcement agencies (e.g. CNB, CPIB,
etc.) – they are not “police officers”.
o Their power to record statements are found in other relevant statutes.

59
Procedural Requirements
 Any statement made under s 22, CPC must comply with procedural requirements under s 22(3), CPC.
o s 22(3), CPC: A statement made by a person examined under this section must:
 (a) Be in writing.
 (b) Be read over to him.
 (c) If he does not understand English, be interpreted for him in a language that he
understands.
 (d) Be signed by him
 Regarding role of interpreters
o s 22(3)(c) is a new subsection that allows interpretation if witness does not understand English.
o Investigating officer can act as an interpreter as there is no prejudice with his role as an
investigator (Kong Weng Cheong v PP)
o But if investigating officer acts as the interpreter, he must be sufficiently competent to interpret
 Foong Seow Ngui v PP
 HELD: The mere fact that a Hokkien interpreter was himself of a different
dialect group was not a reason to find the interpretation flawed. The only issue
is competence.
o Quare: What if the interpreter behaves extraordinarily?
 PP v Syed Abdul Aziz
 Interpreter told the accused to be religious, to pray, to visit mosques, and not
to do bad deeds.
 HELD: Court found it strange, irregular, and out of keeping with the procedure,
but ultimately held that advice did not vitiate voluntariness.
 Necessity of medical examination (usually for drug withdrawal cases)
o No formal requirement under s 22, CPC for a medical examination to be conducted.
 Whether a medical exam should have been conducted depends on the facts of the
case.
 Lim Swee Thong v PP
 Accused argued that his withdrawal symptoms rendered the statements
involuntary, and that medical examination should have been conducted prior
as a safeguard.
 HELD: Accused was not in a state of near delirium to require medical exam.
 Goh Soon Huat v PP
 HELD: Court looked at the totality of evidence and found that there was no
need for a medical examination to be conducted.
 Privilege against self-incrimination
o Under s 22(2), CPC, the person examined need not say anything that may expose him to a
criminal charge, penalty, or forfeiture –
  Codified right of silence/privilege against self-incrimination.
o However, there is no right to be informed of the right to remain silent because it is not a
principle of natural justice or a constitutional right (PP v Mazlan bin Maidun)
 Statements are not rendered inadmissible merely by the fact that the accused was not
informed of his right to remain silent – admissibility is still governed by the
voluntariness test in [s 258(3), CPC].
o PP v Lim Thian Lai
 HELD: Investigating officer not obliged to inform the accused that he may decline to
answer any question that may incriminate him

60
Cautioned Statements (s 23(1), CPC)
 Once the accused is informed that he may be prosecuted for the offence, the office is under a duty to
serve him a notice in writing pursuant to s 23, CPC (i.e. the cautioned statement).
o s 23, CPC: (1) If during an investigation, a person is charged with an offence/is informed by a
police officer that he may be prosecuted for an offence, he must be served with and have read
to him a notice in writing:
 Do you want to say anything about the charge that was just read to you? If you keep
quiet now about any fact or matter in your defence and you reveal this fact or matter
in your defence only at your trial, the judge may be less likely to believe you. This may
have a bad effect on your case in court. Therefore it may be better for you to mention
such fact or matter now. If you wish to do so, what you say will be written down, read
back to you for any mistakes to be corrected and then signed by you.
o (2) If an accused remains silent, or says or does anything which intimates his refusal to give a
statement, the fact of his remaining silent or his refusal to give a statement or his other action
must be recorded.

 Purpose of statement under s 23(1), CPC.

o Sim Ah Cheoh v PP – rationale is:
 Inform the accused of the charge that he is facing,
 Afford him an opportunity to state any fact that he intends to rely in his defence,
 Further warn him that if he did not state it then, his silence could give rise to an
adverse inference being drawn against him.

Who can record a statement?

 s 23(1), CPC: “Any police officer or any other person charged with the duty of investigating offences”.

Procedural requirements
 Procedural requirements under s 23(3), CPC.
o s 23(3), CPC: A statement made by a person examined under this section must:
 (a) Be in writing.
 (b) Be read over to him.
 (c) If he does not understand English, be interpreted for him in a language that he
understands.
 (d) Be signed by him.

 Must the notice (i.e. the caution in s23(1)) be explained?

o s 23(1), CPC: Notice must be “served” and “read” to the accused”.
o There is no requirement that the notice be “explained” to the accused.
 C.f. position under the former s 122(6), CPC which required the notice be explained –
but even then, “explained” was construed in a broad common sense manner (PP v
Tsang Yuk Chung).
 I.e. so long as accused understands the substance of the charge in the statement, and
the adverse inference if he does not state his defence in the statement, and does not
require the police officer to explain the ingredients of the offence (PP v Tan Boon Tat)
o Lack of explanation does not render statement inadmissible but will affect the inferences, if any,
which the court would draw from the failure of the accused to mention certain facts (PP v Tan
Boon Tat)

61
Adverse inference if accuse does not state his defence
 s 261, CPC: Court may draw adverse inference if accused does not state his defence in his cautioned
statement.
o Where accused on being charged with an offence/informed by a police officer than he may be
prosecuted for an offence, failed to mention any fact he subsequently relies on his defence,
which in the circumstances existing at the time he could reasonably have expected to mention
when so questioned, charged or informed, the court may determine (the purposes of drawing
adverse inference):
 (a) Whether to commit the accused in trial.
 (b) Whether there is a (prima facie) case to answer.
 (c) Where the accused is guilty of the offence charged.
o And draw such inference from the failure as appear proper.
 Adverse inference is exercised at court’s discretion:
o PP v Azman bin Abdullah
 Court has discretion to draw adverse inference – adverse inference need not always be
drawn whenever an accused elects not to say anything in the cautioned statement.
 Request not to make defence until he was given a chance to consult a lawyer – courts have drawn
adverse inference
o Yap Giau Beng Terence v PP
 Accused argued that court should not have drawn adverse inference from his failure to
raise material facts because he had wished to consult a lawyer first to not say the
“wrong things”.
 HELD: Court rejected accused’s contention because the purpose of s 23(1), CPC 2010
(which is to compel the accused to outline the main aspects of his defence immediately
to guard against the accused raising defences later as afterthoughts) would be
rendered otiose if he can escape the consequences simply be explaining that he had
wished to consult a lawyer.

 How much of the defence needs to be stated? – Material facts

o Material facts should be disclosed.
 Accused not required to minutely detail the defence he will be relying on at the trial –
all that is required is that a material fact which will be relied on is stated (Roshdi v PP)
 Govindarajulu Murali v PP
 Accused charged with drug trafficking, and claimed at trial that he did not
know he was delivering heroin because he had tasted the substance and
concluded that it was not heroin.
o However, the “tasting” episode was not mentioned in his [s 23(1),
CPC] statement.
 HELD: The “tasting” episode was the most material part of the defence. Hence,
failure to mention it dented the accused’s credibility severely.
o Where omission is immaterial or irrelevant, no reason to expect the accused to disclose it in the
cautioned statement.
 Khoo Kwoon Hain v PP: Improper to draw adverse inferences in such cases.
 What if defence was not disclosed in the cautioned statement, but mentioned in other statements?
o Ronnie Tay Kok Poh v PP
 HELD: Unfair to draw adverse inference against him merely because he did not make
the same denial again in the cautioned statement (when he had already denied the
charge and stated his defence earlier in the “long statement”).
o PP v Abdul Naser bin Amer Hamsah

62
  HELD: It would be unreasonable to expect laymen to know the difference between
cautioned statements and long statements.

Effect of failure to comply with procedural requirements

 Generally, the failure to comply with procedure set out in ss 22 and 23, CPC (long and cautioned
statements) does not affect admissibility of the statement.
o Admissibility is now governed by s 258(1), CPC– statements (obtained with procedural
impropriety) still admissible, provided it passes the “voluntariness test” in s 258(3), CPC 2010.
 See Explanation 2 of s 258(3), CPC which states that if a statement is otherwise
admissible, it will not be rendered inadmissible merely because it was made in any of
the following circumstances:
 (e) Where the recording officer/interpreter of an accused’s statement
recorded under ss 22 or 23, CPC 2010 did not fully comply with that section.
o Note: Police has no duty to tell accused of his privilege against self-incrimination under s 22,
CPC.
 But statements may be excluded if the police had positively misrepresented by telling
the accused he is bound to tell the truth without also telling him that he has the
privilege of preventing self-incrimination.
 Although failure to comply with procedure set out in ss 22 and 23, CPC does not affect admissibility, it
may affect:
o [1] Court’s willingness to draw adverse inference (what inference, if any) – e.g. since the
accused may not have known the consequences of being silent.
o [2] Discretion – court has discretion to exclude the statement even if it is (technically/legally)
admissible. Even though procedural impropriety does not make a statement inadmissible per se,
it is the basis for the exercise of judicial discretion to deny admissibility to a statement.
 Muhammad bin Kadar v PP
 Younger brother charged with murder (together with his elder brother), and
allegedly confessed to the crime in a number of statements.
o The 1st (long) statement was made to the police officer alone – police
officer had told his 2 colleagues to leave so that he could talk to the
accused alone. Also, police officer recorded confession on a slip of
paper but not in the field diary and substituted certain words.
o The 2nd (long statement) was made to the same police officer who did
not put it down in writing as soon as he could have done, but waited
till after he had lunch.
 Other procedural irregularities include: no warning administered before taking
statement, statements not read back and accused not given opportunity to
correct them, and statements not signed by the accused.
 HELD: CA held that it had a discretion to exclude statements taken in breach of
statutory provisions and/or the PGO even though the statements satisfy the
voluntariness test but may be prejudicial to the accused as a result of those
breaches.
 Basis for exclusion.
o Procedural irregularities not an immediate basis, but it is a means to
finding a basis, that it was a cause for finding the accused’s statement
had more prejudicial effect > probative value.
o Because of those breaches of the PGO (meant to ensure reliable
recording of statements when fully complied.), probative value will be

63
 weakened (a very good argument using the reliability principle as
rationale), and justify the exclusion of such statements – if P seeks to
admit statement recorded in breach of PGO, it will bear burden of
proving that the probative value still > prejudicial effect (e.g. by giving
reasonable explanation for irregularity).
o [3] And if it is admitted, it may affect weight of the evidence.
 Examples of statements that were nonetheless admissible.
o Omission to state that the content has been read over to the subject and an opportunity was
offered to him to make corrections (Foong Seow Ngui v PP).
o Subject failed to sign the statement (Vasavan Sathiadew v PP).
o Subject refused to sign the statement (PP v Lim Young Sien).
 Examples of statements rendered inadmissible.
o Statements not reduced into writing until 6 weeks later (Kong Weng Cheong v P).
o Failure to inform the accused of the charges before the statement is recorded (Jamaludin v PP)

Admissibility of statements by witnesses

 Generally, witness statements are inadmissible as hearsay – evidence must be led through the relevant
witnesses.
 Specifically, under s 259(1), CPC, any statement made by a person other than the accused in the course
of any investigation by any law enforcement agency is inadmissible except where the statement:
o (a) Is admitted when cross-examining a witness/accused on a previous inconsistent statement
with a view to substituting trial evidence with contents of the statement under s 147, EA.
o (b) Is used for the purposes of impeachment under s 157, EA.
o (c) Is admitted by virtue of any other provisions in the CPC 2010 or EA or any other written law.
 E.g. conditioned statement provisions in s 264, EA.
o (d) Is made in the course of an identification parade.
o (e) Falls within s 32(a), EA – i.e. exceptions to hearsay.

Admissibility of statements by accused

 Statements of accused that are admissible.
o s 258(1), CPC: Subject to subsections (2) and (3), any statements by the accused is admissible in
evidence at his trial, whether oral or in writing, made at any time whether before or after he
was charged, and whether or not in the course of any investigation.
 Statement of accused inadmissible if it were made to a police officer below the rank of sergeant (s
258(2), CPC).
 Statement of accused inadmissible if statement was involuntary – i.e. caused by an inducement, threat
or promise.
o s 258(3), CPC: Court shall refuse to admit such statement if the making of it appears to have
been caused by any inducement, threat, or promise from a person in authority and sufficient
where it would give such person reasonable grounds for supposing that he would gain any
advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
o Explanation 2 of s 258(3), CPC: Statement will not be rendered inadmissible merely because it
was made:

64
  (a) Under a promise of secrecy, or in consequence of a deception on the accused.
 (b) When accused was intoxicated.
 (c) In answer to questions which the accused need not have answered.
 (d) Where accused was not warned that he was not bound to make the statement.
 (e) Where recoding officer/interpreter did not fully comply with the section.

The voluntariness test (Principles)

 General principles.
o It is partly objective (i.e. whether there was such TIP?) and partly subjective (i.e. whether such
TIP operated on the mind of the accused?).
 Objective component – determining whether the inducement, threat, or promise was
made. Would the statement have been made if not for it?
 If it was self-perceived, cannot
o Trivial inducements also would not objectively be an inducement –
e.g. trivial inducement for accused persons facing serious or capital
charges. The accused would not objectively have thought it is an
inducement at all.
 Subjective component – determining whether TIP, if made, did operate on the
accused’s mind such that it “caused” the accused to make the statement.
 Lim Thian Lai
o On the facts, subjective limb not satisfied because accused said he did
not trust the policemen and therefore, he cannot claim that he relied
on the promise made by the police officer.
o The accused was not “a babe in the woods who might easily succumb
to fear or intimidation. He is an experienced street operator used to
the rough and tumble of life, and not a man who could or would be
easily broken”.
 Both components must be present before a statement made by the accused should be
excluded on the ground that it was not voluntarily made.
 Burden of proof is on the prosecution to prove voluntariness.
o s 106, EA: Burden of proving any fact necessary to be proved in order to enable any person to
give evidence of any other fact is on the person who wishes to give such evidence.
 Hence, where prosecution wants to prove a confession by the accused, prosecution
must prove beyond a reasonable doubt that the confession was made voluntarily
(Panya Martmontree v PP)

Elements of the voluntariness test

 [1] An “inducement, threat, or promise” was made.

o Must be clear.
 Common sense approach and a question of fact (not an exhaustive list) – e.g. promise
of leniency, lighter sentence, favour, assault, beating, threat of physical harm, etc.
o Self-perceived inducement insufficient per se to make a statement involuntary.
 Lu Lai Heng v PP
 Accused made statement “under impression that his mother could be in
trouble because the drugs were found in her room”, and felt that officers
would let his mother go free if he admitted he owned the drugs.
 HELD: It was the accused’s “own perceived impression” since no officer told
him anything to that effect. “Such a self-perceived inducement could not in

65
 law amount to an inducement/ promise within the meaning of [s 258(3),
CPC]”.
o “You had better tell the truth”
 Previously held to import a threat or inducement
 Now, court will examine facts in the context of the case
 Lim Thian Lai v PP: Judicial attitudes towards legal effect of the words ‘you had
better tell the truth’ or any equivalent expressions have shifted over the years.
o While such utterances have previously been treated as necessarily
establishing a threat or inducement
o The current view is that the import of such words should be assessed
in the context of the individual case.
o The effect of such words must be assessed according to the part
objective and part subjective test
 A police officer can legitimately remind a witness that he should tell the truth and not
tell lies: PP v Ramasamy a/l Sebastian
o Effect of drug withdrawal symptoms on the issue of voluntariness
 PP v Dahalan bin Ladaewa
 Garnam Singh v PP: The person must be in a state of near delirium such that his mind
does not go with the statements he is making
 Muhammad bin Kadar: considerations in totality cast grave doubts about reliability of
the confessions e.g. hangover due ot the drug he had taken the day before. Although
he was not delirious and could to a degree understand what was happening but that
does not mean he was not vulnerable and prone to suggestion under stress (note not re
non-compliance with PGO ordres because that’s just PE > PV)
o Interrogation prior to/during statement recording:
 Robust interrogation within reasonable limits is an essential and integral part of police
investigations
 Seow Choon Meng v PP: Cannot be so robust that it becomes oppressive
 Lau Song Seng v PP: Mere fact that IO elicits the statement by cross-examination is not
sufficient grounds to render the statement involuntary
 Yeo See How v PP: Recording of the statement was conducted in a question and answer
format without the questions being recorded did not go to admissibility.
 [2] Inducement, threat, or promise must have “proceeded from a person in authority”.
o No statutory definition, but generally:
 Police and other law enforcement officers clearly fall within this category – c.f.
inducement by the accused’s friend, or the victim’s sister (Re Lim Kim Ching).
 Psychiatrist who assessed the mental state of accused is in authority (PP v Haji Kassim).
 PP v Lim Boon Hiong – interpreter, can be clothed with “constructive authority”?
 Drug trafficking case. Accused alleged that the interpreter told him that he
would only get 5 years imprisonment and 5 strokes of the cane if he made
admissions in his statement.
 HELD: Interpreter was not a “person in authority” for the purposes of the
voluntariness test.
 Court adopted definition in Deokinanan v R as “anyone who has authority or
control over accused or over the proceedings/ the prosecution against him”.
o On the facts, an interpreter is objectively not a person with the
authority to make any promise that the accused would receive a
lighter sentence.
 But court went on to state that statement will be inadmissible if the
interpreter could be regarded as a person in “constructive authority” (e.g.
made in the presence of a person of actual authority), provided if

66
 o Accused subjectively believed (on reasonable grounds) that PIA heard
the inducement or promise made by the interpreter (could
reasonably be expected to have heard it) and PIA took no steps to
disassociate himself from it or
o PIA heard TIP and took no steps to dissociate himself from it and
accused subjectively believed that PIA heard
o No requirement for the inducement to have proceeded from the person to whom the statement
is given, so long as the inducement, threat, or promise “proceeded from a person in authority”.
 Beh Chai Hock v PP
 Police officer assured the accused that he will only get a warning if he
confessed. The accused later confessed to a different police officer.
 HELD: Inadmissible because 1st police officer had unlawfully induced accused.

 [3] Inducement, threat, or promise must have “caused” the accused to make the statement.
o Continued operation of an inducement, threat, or promise.
 s 258(4), CPC: If the impression caused by the inducement, threat, or promise had been
fully removed, statement is admissible.
 I.e. if inducement, threat, or promise was made some time prior to statement,
the effect may have dissipated by the time the statement was made.
o R v Smith: Confession no longer under influence of threat 1 day later.
o PP v Naikan: Confession was still under the influence of inducement 2
hours later.
 [4] Inducement, threat, or promise must have “reference to the charge against the accused”.
o Poh Kay Keong v PP
 Police made 2 statements – [1] “you still like that, I will charge your brother, your sister-
in-law. They are house owner. I recommend that HDB cheong kong the house”, and [2]
“your key cannot open the door why you scared? Won’t get hanged. You give me a
good statement. I know what to do”.
 HELD: Court of Appeal took a purposive
 The requirement that the ITP “must have reference to the charge” is satisfied
so long as it “was made to obtain a confession relevant or relating to the
charge in question” – i.e. ITP need not relate to the charge at all!
o Chai Chien Wei Kelvin v PP
 A remark that accused would be allowed to call his wife if he cooperated was not a
promise having reference to the charge
 [5] TIP must be “[a] sufficient to give the accused person grounds which would appear to him
reasonable for supposing [b] that by making it he would [i] gain any advantage or avoid any evil [ii] of a
temporal nature [iii] in reference to the proceedings against him”.
o Note: “Temporal nature” means that the accused’s statement will remain voluntary if the
inducement, threat, or promise is non-temporal (spiritual) in nature.
 E.g. an exhortation to him to tell the truth in the presence of God, or to be a good
person, etc.
o Poh Kay Keong v PP
 police officer made a representation to the appellant that he would not face the death
penalty since the appellant’s key could not open the door to the flat where the drugs in
question were found and as such, he should give a “good” statement and leave it to the
investigating officer who would make out the appropriate charge  inducement
 HELD: In relation to statement [1], the “advantage” or “evil” has reference to the
proceedings against an accused person if
 It was gained or avoided (as the case may be) by the making of a statement
relevant or relating to the charge brought against the accused”.

67
  In relation to statement [2], Court of Appeal held that the statements amounted to a
representation to the accused that he had nothing to worry about and would not be
subject to the death penalty since the key he had could not open the door. As such, it
was reasonable to the accused that if he gave a good statement, the police officer
would make out the appropriate charge.
o Ismail bin Abdul Rahman v PP
 HELD: Court distinguished Poh Kay Keong v PP, and held that the 2 cases were different
because of the difference in “the degree of assurance” (discernible to the reasonable
man) allegedly given. On the facts, the police officer only told accused htat he should
tell the truth (or not to tell lies) and that he would “try to get the accused a lighter
sentence”  insufficient
o (X) Sim Cheng Yong v PP: merely stating that the accused would be assisted if he co-operated,
without more, was not sufficient

Oppression
 A confession may be induced by causing the accused extreme discomfort – such statements are
inadmissible.
 Oppression is part of Singapore law although not explicitly mentioned.
o Under Explanation 1 of s 258(3), CPC: If a statement is obtained by a PIA who had
 Acted in such a manner that his acts tend to sap and have in fact sapped the free will
of the maker of the statement,
 And the court is of the opinion that such acts gave the accused reasonable grounds
that by making the statement, he would gain any advantage or avoid any evil of a
temporal nature in reference to the proceedings against him,
 Then such acts will amount to a TIP that will render the statement inadmissible.

 Courts are generally reluctant to find oppression.

o Only one clear case where it clearly applied – PP v Lim Kian Tat (it was also applied by the trial
court in Fuk Yuk Shing v PP, but later doubted on appeal).
o What constitutes oppression must depend on the circumstances of each case.
 R v Priestly
 HELD: Factors to consider include:
o Length of time of any individual period of questioning.
o Length of time between periods of questioning.
o Whether accused was given proper refreshment/ subject to
discomfort
o Characteristics of the accused – e.g. a child, elderly, etc.
o Characteristics of the accused should be important in determining “sapping” of the free will
o Mere fact of police impropriety seems unlikely to be an independent basis for excluding
statement.
 PP v Tan Boon Tat – deprivation of food and drink.
 Accused was handcuffed, made to squat at car porch, taken to interrogation
and handcuffed to a chair, and was not given any food or drink for 12 hours.
 HELD: Oppression is a very high standard. Court accepted that the accused was
at the material time tired, hungry, thirsty, and was also under great stress, but
did not think that the accused in such a state of shock, exhaustion, or fatigue
that he had no will to resist making the statement which he did not wish to
make – the police were merely inconsiderate.

 Fung Yuk Shing v PP – deprivation of food and drink.

68
  Accused deprived of food and drink for 7 hours.
 HELD: Court of Appeal held that it is a “question of fact” whether deprivation
of food and drink constitutes a “threat” or “inducement”. Many factors to be
taken into account – e.g. the accused was examined by doctors, did not
complain, etc.
 The failure to offer sustenance might be a deliberate ploy to weaken the
accused’s free will, or it “might be a genuine oversight”. It does not appear
realistic for the courts to take a sweeping stand that every failure to offer the
accused sustenance constitutes a “threat” or “inducement” of such gravity as
to automatically render any statement he makes involuntary.
 Seow Choon Meng v PP – systematic interrogation.
 HELD: Robust interrogation is an essential and integral aspect of police
investigation. However, if the questioning is too vigorous or prolonged, it
becomes oppressive. However, on the facts, the court disbelieved the
accused’s allegation.
 Yeo See How v PP – systematic interrogation.
 Questioning at a fast pace, amounting to cross-examination, could be
oppression.
o However, on the facts, the court found that there were pauses due to
interpretation, and the questioning was thus not at a frantic pace to
be cross-examination.
 Felt cold, not given medicine for gastric, hungry  No requirement for all
discomfort to be removed, question is whether discomfort is of such a great
extent as to sap free will
 C.f. PP v Lim Kian Tat – Singapore court found oppression.
 Accused charged with murder made 5 statements, and the fourth was taken
during an 18-hour interrogation with 1 hour’s break, and was taken during the
fourth night in a row in which the accused did not have any adequate sleep.
 HELD: Accused acquitted. Court was satisfied that the accused had spoken
when he would not have otherwise, and the statement was made in
circumstances where there was oppression.

Remember discretion to exclude

 Muhammad bin Kadar v PP [2011] SGCA: The court has the discretion to exclude evidence which is more
prejudicial than probative, especially where flagrant breaches of procedure in obtaining statements
renders the reliability of the statements extremely doubtful

Ancillary hearings: s 279, CPC

 The issue of admissibility was previously determined during a voir dire, but ancillary hearings in s 279,
CPC has replaced the traditional process of a voir dire.
o s 279(2), CPC: An ancillary hearing is a separate and collateral proceeding from the main trial.
Evidence adduced in an ancillary hearing shall be limited only to the ancillary issue
o See s 279(3), CPC for the detailed procedure.
 (k) Before proceeding with the main trial, court must make a ruling on admissibility of
the statement.
o s 279(5), CPC: Evidence adduced during the ancillary hearing can be used in the main trial.

69
 o s 279(7), CPC: If the court (after hearing evidence in the main trial) is doubtful about the
correctness of its earlier decision at the ancillary hearing, it can call on the prosecution and
defence to make further submissions.
o S 279(8), CPC: Can reverse earlier decision and disregard the evidence
o S 279(9), CPC: Can reverse earlier decision and admit evidence
 Ancillary hearing only determines admissibility
o Even if statement is admitted, issue of accuracy and the weight to be accorded still remain.
 An ancillary hearing is necessary whenever the admissibility of a confession is challenged (Ben Chai Hock
v PP) provided that the dispute is not only on a point of law, but requires calling of evidence from the
accused and/or witnesses
o Ajodha v The State
 HELD: 3 categories where [an ancillary hearing] is necessary:
 [1] When accused admits making the statement but disputes voluntariness
 [2] When accused claims contents of statement was not his, but he signed.
 [3] When court finds some evidence of a TIP.
 Note: But not when accused denies making the statement – in such a case,
the statement will be admitted and the issue is one of weight.
o Note: This is the same as Illustration (d) of s 279, CPC: The
prosecution seeks to admit a statement of the accused, who denies
that he made it. No ancillary hearing is necessary as this does not
relate to the voluntariness of the statement.

When identity/rank of recorder is challenged  VD Necessary

- Beh Chai Hock v PP (1996): Claiming an officer below the rank of seargeant, recorded the statement
would determine admissibility, and hence a voir dire should be held

When accused categorically denies making the statement  No need VD

 If Acc alleges that the statement is a fabrication
 Only issue will be of weight Not an issue of voluntariness

When Accused alleges inaccurate/incomplete recording  No need VD

 Fun Seong Cheng v PP (1997): But if there are material inaccuracies or omissions, then little or no
weight would be attached

When alleges procedural deficiencies, i.e. statement was not read back to him/signed by him  No need VD
 Vasavan Sathiadew v PP

Consequences of Failing to Conduct a Voir Dire

 Not an irregularity that can be cured under s 423 of the CPC
o Trial judge cannot determine the admissibility of the statement!

Consequences of Improper admission of statement

 Improper admission of statement or rejection of evidence NOT in itself a ground for new trial/reversal
of decision if there is sufficient evidence justifying the decision.
 Key Test: MUST have occasioned a failure of justice
o Muhammad bin Kadar v PP: Even if a trial court has wrongly exercised (or omitted to exercise)
the exclusionary discretion, an appellate court will not alter the decision of the trial court unless
the improper exercise of the exclusionary discretion occasions a miscarriage of justice.

Use of statements: previous inconsistent statements

 Impeachment under s 157(c) EA

70
 o Purpose is to undermine the credibility of the witness / the accused by showing that his
testimony in court should not be believed because his character and moral makeup is such that
he is incapable of speaking the whole truth under oath and should not be relied upon
o Who can impeach? The party who calls him with the consent of the court / adverse party
 Cross-examination for the purpose of substituting the evidence under s 147(3), EA
o Where in any proceedings a previous inconsistent /contradictory statement made by a person
called as a witness in those proceedings is proved by virtue of this section, that statement shall
by virtue of this subsection be admissible as evidence of any fact stated therein of which direct
oral evidence by him would be admissible.
 Procedure in respect of a witness
o If witness’ evidence in court contradicts his statement, an application is to be made under s 156
EA to cross-examine the witness
o Decision is to be made whether the aim of cross-examination is to impeach the witness’ credit
under s 157(c) EA or to substitute his oral testimony in court with his previous statement under s
147(3) EA for each discrepancy
o Muthusamy v PP sets out procedure for using a previous inconsistent statement vs. a witness
 Procedure in respect of accused
o Section 258(1) CPC allows for any statement made by an accused to be admitted at his trial and
can be used to cross-examine him and impeach his credit, provided that it was made voluntarily
Therefore, if the person to be impeached is the accused, there is no need to follow the
procedure in Muthusamy v PP, nor for leave of court to be obtained to use the statements.
o Procedure (assuming the statement has not already been admitted during the Prosecution’s
case) would be as follows:
 Prosecutor applies to court to either cross-ex accused under s 147(1) EA (with a view to
admitting relevant parts of statement under s 147(3) EA) or under s 157(c) EA (to
impeach the accused’s credit)
 Prosecutor shows the statement to the accused to confirm that it was made voluntarily
If accused claims that it was given involuntarily, then an ancillary hearing must be held
first to determine voluntariness and admissibility of statement
 If statement was made/proven to have been made voluntarily, then portions of the
statement which are inconsistent will be pointed out and explained to the accused, for
his explanation as to the discrepancies.
Use of statements: refreshing memory
 General rule is that witness should testify at a trial unaided
o Only when this cannot be done should recourse be had to his statement to refresh his memory
o A witness cannot refresh his memory as of right. Court’s discretion whether to allow it.
 Generally, two pre-conditions must be satisfied before a witness is allowed to refresh his memory
o Witness indicates that he cannot now recall details of event because of the lapse of time; and
o The witness made a statement much nearer the time of the event and the contents of the
statement represents his recollection at the time he made it.
 See ss161–163,EA

10- EVIDENTIARY MATTERS DURING A TRIAL

Use of Statements

 What is a statement?
o s 257, CPC 2010: A statement includes any “representation of fact, whether made in words or
otherwise”.
o Once a statement is admitted into evidence, it can be used for a variety of purposes.

71
[1] Use to prove relevant facts
 Statements can be used as evidence to prove relevant facts, if admissible.
o Refer above to conditioned, long, and cautioned statements.

[2] Use to draw an adverse inference

 To draw an adverse inference from the accused’s failure to mention material facts in cautioned
statements.
o See s 23(1), CPC 2010 read with s 261, CPC 2010.

[3] To impeach the credit of a witness/accused

 To impeach the credit of a witness/accused under s 157, EA.
o Note Impeachment is not confined to the adverse party – i.e. prosecution can impeach
prosecution’s witness.

 Note: Defence counsel may not utilise s 157, EA and make application for the
impeachment process (s 259(1)(b), CPC 2010), unless defence shows ground for belief
that the witness statements should be referred to (because it will contradict the
witness’ testimony in court), and the court is satisfied (DT v PP (2001)).

o s 157, EA: The credit of a witness/accused may be impeached in the following ways by the
adverse party or, with the consent of the court, by the party who calls him:
 (a) By the evidence of persons who testify that they from their knowledge of the
witness believe him to be unworthy of credit.
 (b) By proof that the witness has been bribed, or has accepted the offer of a bribe, or
has received any other corrupt inducement to give his evidence.
 (c) By proof of former statements inconsistent with any part of his evidence which is
liable to be contradicted.

o Where a witness gives oral evidence that is contrary to a previous statement made by the
witness, the party cross-examining the witness/accused may impeach the credit of that
witness/accused.

 4 levels of inconsistency – minor, apparent, serious, and material.

 “Material” inconsistencies are those inconsistencies that go to the crux of the
charges.

o Procedure for impeachment.

 [a] Refresh the memory of the witness/accused using s 161, EA.

 Document has to be given to adverse party under s 163, EA.
 If witness/accused not refreshed, can choose:
o To cross-examine (if own witness) under s 156, EA.
o To admit the statement as evidence under s 147(3), EA – refer to [4]
below.
o To continue impeaching the credit of the witness/accused under s
157, EA.

 [b] Highlight material discrepancies in statements.

 [c] Establish the discrepancies from testimony or other statements.

 [d] Apply under s 157(c), EA and tender a copy of the statement to court to determine
whether material discrepancies exist.

72
  Only if discrepancies are serious/material can the impeachment process be
invoked.

 [e] Prejudicial and irrelevant parts of the statements are covered up (see Wong Kim
Poh v PP (1992)).

 [f] If court allows the application, tender a copy of the statement to the
witness/accused to read.

 [g] Ask witness/accused if statement was made voluntarily.

 If statement is contested, adduce evidence from witnesses in the main trial
showing the circumstances surrounding the recording of the statement (see
Siim Bok Huat Royston v PP (2001)).
 If statement is not contested, court will admit it.

 [h] After statement is admitted, explain the material discrepancy to the

witness/accused and give him a chance to explain.

 [i] If explanation is satisfactory, his credit is saved.

o Effect of successful impeachment.

 Witness/accused’s credit is demolished.

 Evidence of the witness/accused must now be carefully scrutinised, although
impeachment does not lead automatically to a total rejection of his evidence (Chen Jian
Wei v PP (2002)).
 Loganatha Venkatesan v PP (2000), Low Siew Hwa Kenneth v PP (2003)
 HELD: Court need not make a ruling as to whether the credit of the witness is
impeached – court only has to consider any discrepancies and the witness’
explanation for the purpose of an overall assessment of his credibility.

[4] To cross-examine a witness/accused on a previous inconsistent statement

 Statements can be used to cross-examine a witness/accused on a previous inconsistent statement with a
view to substituting trial evidence with contents of the statement – i.e. used to prove the truth of the
facts stated.

o A statement used to impeach the credit of a witness may be admitted as substantive evidence.
 s 147(3), EA: After the witness has been cross-examined on such a statement, the
statement shall be admissible as evidence of any fact stated therein.

o Evidential weight.
 s 147(6), EA: Court will consider the following factors (non-exhaustive, but elaborated
by case law):
 Accuracy of the statement.
 Whether the statement was made contemporaneously with the occurrence of
the facts.
 Whether the maker of the statement had any incentive to conceal or
misrepresent the facts.
 (Explanation of the inconsistencies).
 (Cogency and coherence of the facts relied on).

 PP v Heah Lian Kin (2002)

 HELD: Court will take into account that conflicting versions even by honest and
disinterested witnesses is a common occurrence and it will take into account
human fallibility.

73
  R Alagiyasolam v PP (2006), Chai Chien Wei Kelvin v PP (1999)
 HELD: In admitting a witness’ prior inconsistent statement as substantive
evidence of the facts therein, the court must consider the factors in s 147(6),
EA (as elaborated by case law) for guidance in considering the weight to be
attached to it.

 Yeo Kwan Wee Kenneth v PP (2004)

 HELD: Where there is inconsistency in the testimony, the court is entitled to
accept one part of the testimony and reject the other part.

 PP v Sng Siew Ngoh (1995)

 HELD: No requirement that there has to be corroboration of such statements
admitted before evidence of the facts in the statement can be used as sole
evidence for conviction.

[5] Corroboration
 Statement can be used as corroboration under s 159, EA.

o s 159, EA: Former statements of witness may be proved to corroborate later testimony as to
same fact.

o Khoo Kwoon Hain v PP (1995) – self-corroboration.

 HELD: Statements by the victim about the same incident to several different people
can constitute corroboration under s 159, EA, but the evidential weight given will be
limited.

[6] Evidence against co-accused

 As evidence against a co-accused.
o s 258(5), CPC 2010: When more than one person is being tried jointly for the same offence, a
confession made by one of them affecting himself and some other of such person is proved,
the court may take into consideration the confession as against the other person as well as
against the person who makes the confession.

 [1] Only applies where there is a joint trial for the same offence (or abetment thereof).
 Not applicable if separately tried, or where only 1 of them is charged.
 Not applicable if they are charged for difference offences.

 [2] Only applies to “confessions” and not to any statements.

 s 258(7), CPC 2010 defines “confession” as “any statement made at any time
by him stating or suggesting the inference that he committed that offence”.

 [3] Only applies to a confession made by the accused which affects himself and his co-
accused – must implicate himself!
 Illustration (a) of s 258(5), CPC 2010: A says “B and I murdered C”.

o Conviction may be founded entirely on the confession of a co-accused alone.

 Chin Seow Noi v PP (1993)

 HELD: However, court should be cautious of the dangers of placing undue
reliance on co-accused statements – e.g. because of the potential lack of
opportunity to cross-examine the co-accused if he decides not to take the
stand.
 Hence, the court must be satisfied that the evidence emanating from the
confession proves the accused’s guilt beyond reasonable doubt.

74
  C.f. Lee Chez Kee v PP (2008) – court now expressing some concern.
 HELD: Court highlighted that Chin Seow Noi v PP should be reconsidered –
“given the law’s seeming concern with the unreliability of a co-accused’s
confession apart from s 258(5), CPC 2010)”, it does seems “a bit out of the
ordinary for a co-accused’s confession admitted under the provision to be
attributed so much weight to the extent of it being able to secure a conviction
on its own”.

[7] Evidence of retracted confession

 As evidence of a retracted confession.
o Retracted confession can still be used to convict an accused if the court is satisfied of its truth.

 Mohamed Bachu Miah v PP (1993)

 HELD: No need for corroborative evidence if court is satisfied of confession’s
truth.

 Lim Thian Lai v PP (2006)

 HELD: Settled law that an accused person can be convicted solely on his
confession even though the statement is subsequently retracted.
 But before such a conviction, the court must be satisfied that his confession is
voluntary, true, and reliable. If so, no other corroborative evidence is required.

 Note: However, if the accused offers a plausible explanation as to why he confessed, it

may have significant effect on weight (and vice versa).

 PP v Rozman bin Jusoh (1995)

o HELD: Once a statement is made, a mere retraction alone will not
persuade the court into believing that the retracted statement was
false or unreliable.
 There has to be some satisfactory reason why such a
statement was made in the first place – if maker fails to give
a satisfactory explanation as to why he made the retracted
statement in the first place, the court may infer that the
retracted statement represents the true state of facts, and
that the subsequent position taken is false.

o Retracted confession can still be used against a co-accused under s 258(5), CPC 2010, and the
event of the retraction (if any) only goes towards the weight to be attached to the confession
(Panya Martmontree v PP (1995), Thongbai Naklangdon v PP (1996)).

Privilege

Legal privilege
 s 128, EA: Professional communications.
o (1) No advocate or solicitor shall at any time be permitted, unless with his client’s express
consent, to disclose:
 [1] Any communication made to him in the course and for the purpose of his
employment as such advocate or solicitor by or on behalf of his client, or to
 [2] State the contents or condition of any document with which he has become
acquainted in the course and for the purpose of his professional employment, or to
 [3] Disclose any advice given by him to his client in the course and for the purpose of
such employment.

75
  Duration of privilege – obligation continues after the employment has ceased.

o Foo Ko Hing v Foo Chee Heng (2002)

 HELD: Privilege extends beyond employment – “once privileged, always privileged”.

 What is protected?

o Scope of communication is construed broadly.

o Balabel v Air India (1988)
 HELD: Legal advice is not confined to telling the client the law – it must include advice
as to what should prudently and sensibly be done in the “relevant legal context”.
 Legal professional privilege extends beyond requests for legal advice and legal advice.
 In most relationships, there will be a continuum of communication and
meetings between the solicitor and client (with information passing through).
 If the information is meant to keep the parties informed so that advice may be
sought and given, privilege will attach.

 What is not protected?

o s 128(2)(a), EA: Any communication made in furtherance of any illegal purpose.

o s 128(2)(b), EA: Any fact observed by any advocate or solicitor in the course of his employment
as such showing that any crime or fraud has been committed since the commencement of his
employment.
 Includes both “criminal and civil fraud” (Gelatissimo Ventures (S) Pte Ltd v Singapore
Flyer (2010)).

 Privilege belongs to client and not to the lawyer – client can waive privilege.

o Waiver provisions in the EA – s 128(1), EA (express waiver), and other provisions on implied
waiver.
o Waiver through client’s disclosure to 3rd party.
 However, there is still protection by equity, and party can apply for injunctive relief.

Communications during marriage

 Under s 124, EA, communications during marriage are protected from disclosure generally.
o Unless the other spouse consents to waiver of privilege.

 However, in criminal proceedings, a witness is not excused from answering questions merely on the
ground that the answer will incriminate his/her spouse.

o s 134(5)(a), EA: Where the spouse of the accused gives evidence in any criminal proceedings,
he/she shall not be entitled to refuse to answer a question or produce a document or thing on
the ground that to do so would tend to prove the commission by the accused of the offence
charged.
 However, s 134(6), EA states that no answer given should expose the accused or the
spouse to any other offences/penalties in any other proceedings.

See Lim Lye Hock v PP (1995) for discussion of the rule and its exception.

Illegally obtained evidence

 Although the Court of Appeal in Law Society of Singapore v Tan Guat Neo Phyllis (2008) suggested that a
court has no discretion to exclude illegally obtained evidence, refer to the debate below.

Judicial discretion to exclude evidence

 At common law, judges possess the discretion to exclude admissible evidence.

76
 o R v Sang (1980)
 HELD: House of Lord laid down 3 propositions:

 [Proposition 1] A trial judge in a criminal trial always has a discretion to refuse

to admit evidence if he is of the opinion that the evidence’s prejudicial effect >
probative value.
o Note: The focus is on the unfair use of such illegal/improper evidence
at trial.
 C.f. unfairness in method is enunciated in Proposition 2, and
the courts are generally not concerned except in the
categories of [a] and [b].
o Discretion arises after the evidence is admitted.
o Discretion also applies to all kinds of evidence.

 [Proposition 2] Save with regard to [a] admissions and confessions, and [b]
generally with regard to evidence obtained from the accused after commission
of the offence – in all other situations, the judge has no discretion to refuse to
admit relevant admissible evidence on that ground that it was obtained
improperly/unfair means.
o Court is generally not concerned with how it was obtained, except in
these 2 cases, where it will pay closer attention to the process of
obtaining the evidence.

 [Proposition 3] Discretion will not be exercised just because evidence was

obtained by an agent provocateur.

 Judicial discretion to exclude admissible evidence appears to exist in Singapore.

o Cheng Swee Tiang v PP (1964)

 HELD Court held that “evidence unlawfully obtained is admissible if relevant” but
“there is judicial discretion to disallow such evidence if its reception would operate
unfairly against an accused”.
 In evaluation whether to exercise the discretion, court must weigh 2
competing interests:
o [1] Interest of the individual in having his liberties protected.
o [2] Interest of the State to secure probative evidence to enable justice
to be done, which should not be overridden by technical illegality.
o No absolute rule can be formulated (it is entirely contextual) – key
test is whether the admission of evidence would operate unfairly
against the accused.

o Ajmer Singh v PP (1987)

 HELD: Court approved of Cheng Swee Tiang v PP and held that it did not conflict with
the newer and narrower propositions in R v Sang.

o PP v Dahalan bin Ladaewa (1995)

 HELD: With regard to Proposition 2[a] of R v Sang, court has discretion to not admit a
statement even if it is not obtained by threat, inducement or promise (i.e. even if ss
22(1) and 23(1), CPC 2010 are followed).

o Muhammad bin Kadar v PP (2011)

 HELD: With regard to the general debate on discretion, court cited Law Society of
Singapore v Tan Guat Neo Phyllis and noted “the principle that the court had a
discretion to exclude evidence only on the ground that it was obtained in ways unfair to
the accused” was incompatible with the EA and ousted by s 2(2), EA.

 Note: The court is basically reinterpreting Proposition 2 of R v Sang.

77
 o It allows a discretion under Proposition 2 of R v Sang for such
impropriety only if probative value < prejudicial effect, such that it
affects reliability of evidence.
o Improper/unfair means of obtaining evidence does not cause it to be
inadmissible per se, and does not give the court the discretion to
refuse admission per se.
 It has to affect the probative value of the evidence as well.
o This means that Proposition 2 of R v Sang seems to be interpreted in
only 1 way now (and in a way similar to Proposition 1 of R v Sang).
 It merges “operating unfairly at trial” and “unfairness of
obtaining evidence”, and restricts the exercise of discretion
for both – i.e. only if probative value < prejudicial effect, such
that reliability is affected.
 Court found that the basis of the old discretion in
Proposition 2 was inconsistent with the EA, which expressly
admits evidence obtained from the accused after the
commission of the offence (e.g. s 29, EA).
 However, the court also noted that Law Society of Singapore v Tan Guat Neo Phyllis
held that the key holding of R v Sang remains of effect – court always had a discretion
to exclude evidence that had more prejudicial effect > probative value, and this is
consistent with the EA and in accordance with the letter and spirit of s 2(2), EA, and
applicable in the Singapore context.
 Note: This is in line with Proposition 1 of R v Sang – the general discretion
always exists because it arises from an inherent jurisdiction of the court to
prevent injustice at trial.
o Quare: How to reconcile this with Explanation 2(e) of s 258(e), CPC 2010?
 Note: This limitation concerns Proposition 2 of R v Sang – Proposition 1 of R v Sang
always exists.
 It is compatible – the discretion has survived.
 The provision only forgives impropriety if the process “did not fully comply”
with ss 22 and 23, CPC 2010. As such, it is an extremely high threshold – a
huge impropriety that arguable does not comply (substantially or at all) with ss
22 and 23, CPC 2010 will still allow the courts to exercise the discretion in
excluding evidence (similar to Proposition 2 of R v Sang).
 The discretion has been limited.
 Muhammad bin Kadar v PP is a case on the old CPC, and may not survive the
new legislation because it seems to put the burden of proof on the
prosecution (that probative value will > prejudicial effect) by giving reasonable
explanation of the irregularity.
o Procedural irregularity seems to = presumption of mistrust.
 The new provision seems to forgive such irregularity – no need for prosecution
to explain.

Facts discovered by virtue of statement of accused

 Doctrine of confirmation by subsequent facts:

 s 258(6)(c), CPC 2010 is an exception to the hearsay rule and s 258(3), CPC 2010.
o s 258(6)(c), CPC 2010: When any fact or thing is discovered in consequence of information
received from the accused of any offence in the custody of any officer of a law enforcement
agency, so much of such information as relates distinctly to the fact or thing thereby
discovered may be proved.
 “Information” not limited to statements – it can include acts or conduct of the accused
(e.g. gestures).

78
  Provision does not let the confession in generally, but is limited to that part of the information that is
strictly pertinent (as confirmed by subsequent facts).
o PP v Chin Moi Moi (1995)
 Accused made an involuntary statement alleging that she threw a gold bracelet out
which was out later at the grass patch below the victim’s house.
 HELD: Rationale for the admissibility of that part of the statement which is
subsequently confirmed by the discovery of a material fact is that it must be reliable.

 Hence, confirmation of discovery of facts from confession can re-admit the inadmissible (due to
inducement, threat, or promise, or it being hearsay) because some guarantee is afforded that the
information was true.

 Causation requirement.
o PP v Chin Moi Moi (1995)
 HELD: Must first prove that the subsequent fact was discovered in consequence of the
information received from the accused.

(11) JUDGMENT AND SENTENCING

Mode & Mechanics of delivering judgment

Mode of delivering judgment

 In open court – s 298(1), CPC.
 In the accused’s presence (generally)
o s 298(10), CPC: Dispensation of the accused’s presence only where his personal attendance
during the trial has been dispensed (see s 154, CPC) + the sentence is one of fine only.
 Under s 154 an accused person may plead guilty by way of letter only if the offence is
punishable by fine or by imprisonment not exceeding 12 months or by both
 PP v Sinsar Trading (2004): An accused person may plead guilty by way of
letter only if the offence is punishable by fine or by imprisonment not
exceeding twelve months or by both

Special provisions for capital punishment

 s 314, CPC: An offender who is less than < 18 years old at the time of his offence cannot be sentenced to
death. He must be punished with life imprisonment.
 s 315, CPC: Where a woman convicted (i.e. at the time of conviction) of an offence punishable with
death alleges that she is pregnant, the court shall determine whether or not she is pregnant.
o If she is found to be pregnant, a sentence of life imprisonment shall be passed on her.
o If she is found not to be pregnant, she can still appeal to the CA against such a finding.

Sentencing jurisdiction
 [1] Sentencing jurisdiction of the HIGH COURT
o s 15(2), SCJA read with s 303(1), CPC: No limit for imprisonment, fine, caning or aggregate; may
pass any sentence authorised by law
 [2] Sentencing jurisdiction of the DISTRICT COURT
o s 303(2), CPC

79
  Imprisonment of up to 10 years.
 Fine of up to $30,000 per charge.
 12 strokes of the cane per charge (maximum of 24 at 1 trial).
o s 306(4), CPC: Aggregate imprisonment cannot be more than 20 years at 1 trial.
o District Court can also impose other sentences such as Reformative Training, Corrective Training,
and Preventive Detention, Mandatory Treatment Order, Day Reporting Order, Community Work
Order, Community Service Order, and Short Detention Order.
 Each of these sentences is imposed as 1 term for all the charges.
 [3] Sentencing jurisdiction of the MAGISTRATE’S COURT
o s 303(3), CPC
 Imprisonment of up to 3 years.
 Fine of up to $10,000 per charge.
 6 strokes of the cane per charge (maximum of 24 at 1 trial).
o s 306(4), CPC 2010: Aggregate imprisonment cannot be more than 6 years at 1 trial.
o Note: However, if written law empowers the Magistrate’s Court to award full punishment which
exceeds the above, then the written law’s enhanced sentencing powers are followed – e.g.
Betting Act, Common Gaming Houses Act, etc.
 Determining the appropriate sentence.
o The appropriate sentence should be determined by the guidelines relating to the offence itself,
not the court in which the sentenced is passed.
 PP v Soh Lip Yong: Even though the District Court’s sentencing jurisdiction was capped
[at a quantum lower than the highest possible sentence that may be imposed for the
offence], this should not be an additional factor in passing sentence.
 Sentencing powers.
o PP v Nyu Tiong Lam: A District Judge who hears a case classified as a Magistrate’s Arrest Case
sits in his capacity as a Magistrate, and his sentencing powers are limited to the powers of a
Magistrate.
 The discretion to classify offences for the purpose of prosecution was exercised by the
DPP’s office and by the police
 It could not be that the accused should then face the prospect of a sentence which
exceeded a magistrate’s court’s ordinary sentencing jurisdiction

Sentencing philosophy & principles

 Judgment should not be altered – principle of “FUNCTUS OFFICIO” (a branch of doctrine of res judicata)
o Can only be altered in limited exception – s 301(1), CPC: Where a court has delivered its
judgment, it may
 Rectify a clerical error at any time, and
 Any other error (including an error in the exercise of its sentencing powers) may be
rectified by the court by the next working day after the delivery of the judgment.
 E.g. when the court exceeds sentencing jurisdiction.
 s 301(2), CPC: Any error resulting from a sentence imposed by a court which it
subsequently views as being too harsh or too lenient is not such error within
the meaning of s 301(1), CPC.
o Court’s power to alter/review judgment should only be exercised in the presence of both
prosecution and accused to safeguard against allegations of impropriety (Wong Hong Tong v
PP).
 Power to deliver written grounds of decision after delivering oral grounds: S 298(3), CPC
 Permitted to supplement such grounds prior to hearing of the appeal: S 298(4) CPC
 Judgment should be sufficient.

80
 o Thong Ah Fatt v PP
 Accused was convicted by the High Court of a drug trafficking offence, but the High
Court only issued a 5 paragraph decision.
 HELD: CA stated that it was unable to understand how the trial judge arrived at his
primary finding of facts, and therefore, remitted the matter back to the High Court.

Sentencing philosophy
 Sentencing philosophy – to reduce crime, and to protect the community (ADF v PP (2010)).
o But sentencing philosophy is not an autonomous sentencing principle, and must be referenced
to the 4 pillars of sentencing (Angliss Singapore Pte Ltd v PP (2006)).
 4 PILLARS OF SENTENCING (Chua Tiong Tiong v PP (2001)).
o [1] Retribution
 PP v Tan Fook Sum: The essence of the retributive principle is that the offender must
pay for what he has done. The punishment must restore just order of society which has
been disrupted by his crime, and must reflect and befit the seriousness of the crime.
o [2] Deterrence
 General deterrence.
 PP v Law Aik Meng: General deterrence aims to educate and deter like-minded
members of the general public by making an example of a particular offender
e.g. when offence is prevalent or when harm is significant.
 Specific deterrence
 PP v Loqmanul Hakim bin Buang: Specific deterrence aims to persuade an
accused to refrain from further unlawful conduct. If sufficient degree of
unpleasantness and distress is placed on the accused through the imposed
sanction, he will take steps to desist from crime in the future to avoid the
distress and ignominy of further punishment.
 Need for articulation of reasons for deterrent sentences (Tan Kay Beng v PP)
o [3] Prevention – for reoffending accused
 PP v Wong Wing Hung: If the offender in question proved that he is a menace to the
society by history of criminal behaviour, he should and must be put away for the
protection and safety of the community at large.
o [4] Rehabilitation
 Siauw Yin Hee v PP: The rehabilitation of offenders constitutes one of the objectives by
which a court is guided in passing sentence. It is a corollary of this that the courts retain
the discretion to decide the appropriateness of a rehabilitative sentence in any
individual case.

Sentencing framework and sentencing considerations

Consistency in sentencing
 There should be parity/consistency in sentencing – but note no 2 cases are identical.
o Where the facts are largely analogous, it would not be proper for a trial judge to depart from
sentencing precedents without giving cogent reasons why they should not be applied (PP v UI,
Ng Geok Eng v PP)
o Sentencing precedents function purely as an aid so that consistency in sentencing may be
maintained. General consistency in sentencing while desirable is not an overriding sentencing
consideration – i.e. must be in line with the culpability and prospect of the accused (Tay Kay
Beng v PP)
o Sentencing benchmarks should not be applied mechanically without a proper consideration and
assessment of the individual facts of the case. Each case must be determined on its own factual

81
 matrix – sentencing involves manifold factors, and no 2 cases can ever be totally identical for
sentencing (PP v Fernando Payagala Waduge Malitha Kumar, Wan Kim Hock v PP)
o No need for consistency if sentences imposed previously were too high or too low (Ooi Joo
Keong v PP)

Sentences involving accomplices

 Sentences involving accomplices – sentence based on relative culpability.
o Where 2 or more offenders are to be sentenced for the same offence, the sentences passed
should be the same, unless there is a relevant difference in their responsibility for the offence
or their personal circumstances (PP v Norhisham bin Mohamad Dahlan)
 Where offenders have different degrees of culpability, they should not be made to
suffer the same length of punishment (Gan Bee Hwa v PP, Ong Tiong Poh v PP)

Where there are 2 or more charges: one transaction & totality

 s 307(1), CPC: if accused is convicted of more than 2 charges, then AT LEAST 2 MUST BE CONSECUTIVE.
o Court should first decide on the appropriate sentence for each charge before then deciding
which sentences ought to run consecutively based on the totality and one-transaction principles
(PP v Syamsul Hilal bin Ismail)
o Where consecutive sentences are imposed, the overall punishment must be proportionate to
the overall gravity of his criminal conduct, taking into account the circumstances in which he
offended and also the pattern of his previous behaviour (Maideen Pillai v PP)
 When to impose more than 2 consecutive sentences?
o A decision to go beyond the stated minimum of 2 consecutive sentences should be taken only in
exceptional cases (Maideen Pillai v PP)
o ADF v PP: A few factors to consider:
 Persistent or habitual offenders.
 Pressing public concern in discouraging the type of criminal conduct being punished.
 Multiple victims.
 Other peculiar cumulative aggravating factors.
 ONE TRANSACTION PRINCIPLE
o Where 2 or more offences are committed in the course of a single transaction, all sentences in
respect of those offences should be CONCURRENT.
 Thus where multiple offences were so closely connected that it might not be fair to
treat them as entirely separate offences for sentencing purposes because of
overlapping factors (PP v McCrea Michael)
o But one transaction rule is only a general rule and not absolute; courts have recognized that
there are situations where consecutive sentences are necessary (PP v Ong Pei Ling Audrey)
 TOTALITY PRINCIPLE
o 1st limb: the aggregate sentence imposed on an offender should not exceed the normal level of
sentences given for the most serious of the individual offences involved
o 2nd limb: Total sentence should not be a crushing sentence not in keeping with the offender’s
records and prospects
o Under this principle, the sentencing court would take into account overlapping factors that
might render the overall punishment harsher than the offender deserves (PP v McCrea Michael)
o But must not be used to minimise punishment when the facts merit sufficiently severe
punishments being meted out – e.g. those who maliciously pursue a deliberate course of
criminal behaviour (ADF v PP)

Proportionality principle
 Sentence must be objectively measured against the offence in terms of gravity.

82
 o Xia Qin Lai v PP: 2 aspects to the “proportionality” principle:
 [1] Cardinal proportionality – how serious is this particular offence of its type?
 [2] Ordinal proportionality – how serious is this offence against other offences?

Closely connected offences

 s 308(1), CPC: Where anything which is an offence is made up of parts, any of which parts is itself an
offence, the person who committed the offence shall not be punished with the punishment of more than
one of such offences unless it is expressly provided.
 s 308(2), CPC: Limit of punishment for offence made up of several offences where
 [1] An offence falls within 2 or more separate definitions; or
 [2] Several acts of which one (or more) would by itself (or themselves) constitute an
offence, and when combined constitute a different offence,
o Then, the overall punishment should not exceed that for any one of such offences.
o Note: This is different from the joinder provisions in ss 135 and 136, CPC.
 Where the accused can be jointly charged for multiple offences at the same trial, the
sentencing must still be limited by s 308(2), CPC.
o Note: This is subject to s 307(1), CPC, where if the accused is convicted of more than 2 charges,
then at least 2 of them must be consecutive.

Maximum sentence
 May be imposed even in plead guilty cases.
 Court has to identify a range of conduct characteristic of the most serious instances of the offence in
question (Sim Gek Yong v PP)
o Nature of the offence itself.
o Aggravating factors.
o Personal circumstances of the offender – e.g. previous similar convictions.
 Sentence must be proportionate not only to offender’s culpability, but also in the context of the
legislative scheme (Angliss Singapore v PP)
o Even if a particular criminal provision prescribes a maximum sentence that seems unduly light or
lenient, meting out a near-maximum sentence is not warranted unless it is demonstrated that
the particular offence is among the worst type of cases falling within that prohibition.

Enhanced punishment for 2nd or subsequent offence

 Specific enhanced punishment provisions may exist for 2 nd or subsequent conviction of the same offence.
 PP vs Boon Kiah Kin
o The words ‘second or subsequent conviction’ ought to be construed to mean a second or
subsequent conviction of an offence under that section
o In general, where a statute prescribed a higher grade of punishment for second or subsequent
offences, the higher punishment could only be imposed upon an offence committed after the
conviction for and not merely after the commission of the earlier offence or offences.
 PP v Mohamed Noor Indra bin Hamzah
o A juvenile conviction constitutes a 1st conviction for which a subsequent conviction would
attract enhanced punishment.
o Note: Sentence of probation is not equivalent to a 1st conviction.

Accused’s antecedents
 Sim Yeow Seng v PP
o Court can consider the antecedents when sentencing, and can enhance the sentence.

83
  An accused’s antecedents reveal his character, attitudes, and likelihood of
rehabilitation.
 So long as they exist, it does not matter whether they were for offences committed
before or subsequent to the current offence.
 Tan Kay Beng v PP
o An antecedent is a relevant and important sentencing consideration if it is similar to the pending
charge  may reflect a pattern or tendency for repeat offending.
 Both general and specific deterrence could then become almost inexorable sentencing
considerations.
o Dissimilar antecedents are largely irrelevant
 Unless they clearly manifest a marked and progressive proclivity towards criminal
activity or cavalier disregard for the law
 Accused’s antecedents elsewhere (in other jurisdictions) –relevant if similar
o PP v Fricker Oliver (2011)
 Antecedents from a foreign jurisdiction should not present additional difficulty if they
are clear and engage in similar considerations – i.e. previous foreign convictions,
especially for similar offences, are relevant to demonstrate the offender’s continuing
disregard for the law and propensity to reoffend.
 However, there should be sufficient details about the previous foreign conviction for
the proper weight to be accorded to such antecedents.

Spent convictions
 Registration of Criminals Act is meant to facilitate reintegration of ex-convicts into society.
 Pre-requisite: “crime-free” period of 5 years. (Section 7B, Registration of Criminals Act)
o DOES NOT APPLY in any one of these cases: s 7C, RCA
 S 7C(b): Sentence exceeded $2,000 fine or 3 months imprisonment.
 S 7C(a): Conviction was for any offence specified in the Third Schedule – e.g. drug
trafficking, serious sexual offences, culpable homicide, gang robbery, rioting, etc.
 S 7C(f): Person has more than 1 conviction (whether or not those convictions arise
from the same particular occasion)
 Consequences of a record becoming “spent”
o Section 7E, Registration of Criminals Act
 Person shall be deemed to have no record of that conviction and it shall be lawful for
him to answer a question asked of him on or after the appointed day about his criminal
record or to disclose info about his criminal record in the manner as if he had no record
of that conviction
o However, still an antecedent relevant to sentencing
 PP v NF: All prior convictions (including “spent” convictions) of an offender are in
theory relevant in sentencing. Nothing either in the Registration of Criminals Act or any
other statutes prevent the courts from disregarding such antecedents.
o  Does not expunge/ erase record, but can withhold disclosure of his record of conviction

Aggravating & mitigating factors

 AGGRAVATING FACTORS
o Specific aggravating factors – for individual offences.
o General aggravating factors.
 Premeditation/planning – more culpability, and a greater threat to society.

84
  Magnitude of the crime – scale of the crime, profits of the crime, number of victims,
etc.
 Effect of the crime on the victim – consequences of the crime.
 Law enforcement officials
 Particularly if committed in the course of duty (PP v Gurmit Singh)
 Abuse of position of trust or authority – e.g. police officers.
 Unblemished career or model citizenship do not tell greatly in the offender’s
favour because his offence against his office may be seen as a betrayal of
those very characteristics
 Mere fact that the appellant had been a police officer should not have been
regarded as an aggravating factor. A deterrent sentence may not be warranted
in cases where a police officer offends outside the scope of his official duties
and does not abuse his position to commit criminal mischief (Annis bin
Abdullah vs PP)
 Vulnerable victim – need to protect vulnerable and defenceless victims.
 Use of weapon – usually indicate some premeditation/planning.
 Use of violence – if it’s of a gratuitous or excessive nature (i.e. over and above violence
necessary).
 Group/gang offence – due to greater likelihood of harm to the victim.
 Extent of the offender’s involvement – role and influence.
 Prevalence of offence – for deterrence.
 Previous criminal record/similar convictions – if habitual and unrepentant.
 Prompt relapse after last release from custody.
 Conduct of accused during trial – e.g. extravagant, unfounded allegations made against
others.
 Commission of an offence whilst on bail for another
 Lack of remorse.
 Thong Sing Hock v PP –lack of remorse not limited to insincere plea of guilt,
but also manifested in allegations launched against the accused’s previous
counsel, the CPIB, and his former colleagues,
 Conduct of trial – extravagant / unbridled / unfounded allegations
 Misconduct in court
 PP v Nyu Tiong Lam: Accused persons created a “spectacle in court” by
protesting their sentences vehemently. DJ doubled their sentence.
 Note: Claiming trial is not an aggravating factor.
 MITIGATING FACTORS.
o Note: Mitigation plea cannot qualify guilty plea
o Note: Court not duty bound to invite accused to mitigate
o Burden of proof in mitigation –PP v Aniza bte Essa
 Where the prosecution objects to any unsubstantiated assertions in the mitigation
speech, Defence will either have to
 [1] Withdraw the statements,
 [2] Provide proof acceptable to the prosecution or
 [3] Call witness via Newton hearing
 If the prosecution does not object to the assertions made by the defence, the court is
entitled to accept them and give such weight to them as it thinks fit.
o Specific mitigating factors – for individual offences.
o General mitigating factors.
 Plea of guilt – timeous plea of guilty can be indicative of genuine remorse

85
  But did not ipso facto entitle an offender to a discount in his sentence; must
consider whether it reflects genuine remorse and consider relevant circs
(including offender’s conduct) –PP v NF
 E.g. no discount:
o Where offender caught red-handed
o Where deterrent sentence necessary
o Where he seeks a Newton hearing in circumstances which undercuts
any suggestion of remorse
 Previous good character – background, reputation, and contributions made to the
community, etc.
 Restitution – timeous restitution indicative of remorse, genuine good character, or
reformation.
 Cooperation with the authorities – e.g. voluntary surrender.
 Young age – greater possibility for reform/rehabilitation.
 Possibility of rehabilitation is the dominant consideration if accused is below
21 years old (PP v Mok Ping Wuen Maurice).
 Mental condition – depends on whether the condition renders the accused a danger to
the public, and whether such condition would worsen if the accused were to be
imprisoned.
 No loss to the victim/no profit for the offender.
 Time spent in custody.
 Inordinate delay in prosecution and prejudice (if not contributed to by accused person
 cannot be because accused misled police!) – Tan Kiang Kwang v PP: would
otherwise result in real injustice or prejudice to Acc
 (1) Acc may have to suffer the stress and uncertainty of having the matter
hanging over his head for an unduly long or indefinite period.
 (2), if there was evidence that Acc had changed for the better between the
commission of the offence and the date of sentence court can take into
account
 The following are generally not relevant
 Pregnancy – exceptionally as an act of mercy.
 Loss of employment.
 Financial hardship – only in exceptional/extreme circumstances (Sim Yeow
Seng v PP)
 Hardship to offender and his family – only in exceptional/extreme
circumstances (PP v Perumal s/o Suppiah)
 Intoxication –only in exceptional/extreme circumstances
o Note that voluntary intoxiction is an aggravating factor (Wong Hoi
Len v PP)
 Ignorance of the law – perhaps only in an exceptional/extreme circumstances
where it indicates minimal moral culpability.
 Elderly offender – court may be compassionate, even though there is no
general rule for discount.
 Ill-health – exceptionally as an act of mercy if illness is of a sufficient severity
o PP v Ong Ker Seng: Ill-health is not a mitigating factor except in the
most exceptional cases when judicial mercy may be exercised
 Absence of an aggravating factor cannot ipso facto constitute a mitigating factor.

86
General sentencing options

Imprisonment
 s 307(1), CPC: If the accused is convicted of more than 2 charges, then at least 2 of them must be
consecutive.
 Date of COMMENCEMENT of sentence and DEFERMENT of sentence
o s 318, CPC: Date of commencement of sentence is on the date on which it was passed, UNLESS
the court directs a deferment of sentence.
o Loh Kok Siew v PP: Application for deferment of sentence is possible – e.g. if accused needs time
to sort out his personal affairs before serving sentence.
 In deciding whether to grant a further postponement of commencement of sentence,
the paramount consideration was the applicant's reasons for such postponement.
 Court should have regard to all the circumstances of the case, including:
 Length of time granted by the court in the first instance,
 Reasons given in support of that application in the first instance and
 Length of the additional time being sought.
 If attendant need for bail to be extended, the usual considerations with
respect to bail being granted following a conviction would also be relevant.
o Ralph v PP: relevant factors include gravity of the offence, offender’s
criminal record, if any, the possibility of the applicant offending or
reoffending whilst at liberty and whether the security imposed will
ensure the attendance of the appellant before the appellate court.
 Ultimately, the court would be guided by whether the interests of justice require that
discretion be exercised to allow the applicant a further period of time before he serves
his sentence (Lim Teck Leng Roland)
 Deferment should not be more than 15 days
 Unless circumstances are overwhelmingly urgent and requiring the convict’s
immediate attention, or if the interest of justice otherwise demands it.

 BACKDATING of sentences
o Court’s power to backdate sentence of imprisonment is discretionary (Sinniah Pillay v PP)
 By backdating a sentence, the court effectively gives a discount – and vice versa, by
refusing to backdate it, the court effectively gives an enhanced sentence.
 Where court decides to backdate, the common practice is to backdate to the date
when the accused was first remanded by the courts.
 But note period in which a convicted person had been out on
bail should not be taken into account in backdating a sentence
(Tang Kin Seng v PP)
o s 322, CPC: No backdating of sentence if offender is an escaped convict or is already serving his
sentence –sentence of imprisonment must begin “either immediately or at the end of the
imprisonment to which he was previously sentenced”.
 LIFE IMPRISONMENT
o Mentally unstable offenders.
 Purwanti Parji v PP, Neo Man Lee v PP
 HELD: 3 conditions (Hodgson criteria) for imposing a life sentence:
 [1] Offence was grave enough to require a very long sentence.
 [2] It is evident from the nature of the offence and the personal history of the
offender that he was unstable and likely to commit such offences in the future.
 [3] Consequences of the offence was especially injurious to others.

87
  PP v Aniza bte Essa: Where any of the 3 Hodgson criteria is not met, the offender will
be sentenced in accordance with the established sentencing principles.
o “Life” should be given ordinary meaning.
o Life imprisonment should be understood as a sentence for imprisonment for the whole of the
remaining period of the convict’s natural life (Abdul Nasir bin Amer Hamsah v PP)
 The Prisons Act (Cap 247) did not empower the Prisons Department to grant
remission for prisoners serving life sentences
 But R 119A, Prison Regulations –prisoners given life sentences to can their sentence
reviewed after 20 years, and then periodically every 12 months.
o Court must exercise caution before giving a young offender life imprisonment
 PP v Tan Kei Loon Allan: As the maximum period is now the remainder of a person’s
natural life, the courts must exercise caution before committing a young offender to life
imprisonment.
o Where prescribed sentence is ten years/life imprisonment, if court desired a sentence greater
than ten years but felt that life imprisonment was excessive (PP v Tan Kei Loon Allan)
 Choice should be on the side of leniency.
 Otherwise, the sentence imposed would significantly exceed the offender’s culpability

Caning
 s 325, CPC: Only for males below 50 and in non-capital cases.
o Ratnam Alfred Christie: time of execution of sentence = relevant time to determine whether
accused has attained age of 50.
 Since the assessment of an offender's fitness to undergo caning is carried out at time of
execution of sentence.
 However, a sentence of caning could be passed on a male offender who was below the
age of 50 years at the time of sentencing.
 Such sentence would not be rendered improper or irregular simply because after the
date of sentencing the offender attained the age of 50 years prior to the time of
execution of the sentence.
o Under s 325(2), CPC, those ineligible for caning may be imposed with an additional
imprisonment term of up to 12 months.
 Maximum strokes
o s 328(6), CPC: 24 strokes maximum at 1 trial
o s 328(6), CPC: 10 strokes maximum in case of juvenile
 Caning shall be inflicted with a light rattan (s 329(4), CPC)
o s 328(2), CPC: where accused would have been sentenced to an aggregate sentence of caning
which exceeds the specified limit, the court may impose a term of imprisonment of not more
than 12 months in lieu of all such strokes which exceed the specified limit.
 Caning cannot be given in instalment (s 330, CPC)) or be concurrent (PP v Chan Chuan)
 Medical exam and remission of caning
o S 331: Medical exam to certify fitness of health for caning – if certified unfit at time of caning,
must be stopped.
o Pre-sentence medical opinion not subject to judicial review (Tan Eng Chye v Director of Prisons)
o S 332: If caning cannot be carried out due to medical reasons, the offender must be kepti n
custody until the court that passed the sentence can revise it
 Court may remit the sentence to imprisonment or additional imprisonment term of up
to 12 month (even if exceeds max term)
 Caning cannot be ordered together with probation or reformative training
o As these are imposed “in lieu of any other sentence” (including caning)
 PP v Rohaizad bin Rosni and s 305, CPC

88
Fines
 2 competing considerations:
o [1] Means to pay.
o [2] Adequacy of fines to achieving sentencing objectives.
 s 319(1), CPC: Court may allow extension of time, instalments, issue warrant to sell the accused’s
property, etc.
 Default sentences may have to be served if there is a failure to pay fine
o Default terms of imprisonment were intended to prevent evasion of fine payment and not to
punish those who were genuinely unable to pay.
o Default sentences are additional to any punishment of imprisonment imposed.
 Where an offender is genuinely unable to pay fines, the court should not order a fine; should instead
order an appropriate imprisonment term to avoid the default imprisonment term (Low Meng Chay v PP)
o Default terms of imprisonment are intended to prevent evasion of fine payment, and not to
punish those who genuinely cannot pay
 s 319(1)(b)(iv), CPC: Default imprisonment sentence of fines should be made to run consecutively with
each other.

Probation
 Generally for relatively minor cases and for accused with propensity to reform.
 What is it? Offender will be under the supervision of a probation officer for a period to be specified in the
order of not less than 6 months nor more than 3 years
o Conditions of Probation (E.g.)
 Stay in residential home/halfway house
 Curfew hours
 Electronic tagging
 Attending counseling sessions
 Performing community service
o Probationer’s next of kin will be required to put up a bond to ensure his good behaviour during
term of probation
 What kind of offences? s 5(1), Probation of Offenders Act – availability of probation as sentencing option
o Not available for offences for which sentence is ‘fixed by law’
 i.e. sentence is fixed in quantum and kind – Mohamed Fairuuz bin Saleh v PP (in
practice very few offences for which probation NA)
o For offences with ‘specified minimum sentence’ of imprisonment/ fine/ caning (minimum
quantum specified but imposition not mandatory) or a ‘mandatory minimum sentence’ of
imprisonment /fine/ caning (minimum quantum specified and imposition mandatory e.g. Money
Lenders’ Act), probation is only available if
 (a) Accused is 16 and above but under 21 when convicted and
 (b) Accused is a first offender in relation to such offences
 When should a probation order be made?
o Court is of the opinion that having regard to the circumstances, including the nature of the
offence and the character of the offender, it is expedient to do so, the court may, instead of
sentencing him, make a probation order
o Court will first call for pre-sentence report to be prepared by probation officer, to determine
suitability of the accused for probation.
 Note Generally inappropriate for accused persons who are foreign nationals not
resident in SG –Tan Choon Huat v PP (difficulties involving probation officer trying to
supervise accused)
 Considerations in granting probation.

89
 o
Rehabilitation is the dominant consideration where offender is below 21 years old.
 Rationale of probation –to wean offenders away from a lifetime career in crime and to
rehabilitate them into self- useful citizens (PP v Muhamad Nuzaihan bin Kamal Luddin )
 In the case of youthful criminals, the chances of effective rehabilitation are
greater than in the case of adults, making the possible use of probation more
relevant where young offenders are concerned”.
o Probation is never granted as of right – must consider public interest considerations; even in the
case of juvenile offenders (PP v Muhamad Nuzaihan bin Kamal Luddin)
 The facts showed that he had made a conscious decision to use his hacking
skills and had also publicly boasted of his feats. In such cases, the courts may
have to apply principles of strict liability so that the offender’s state of mind is
irrelevant to a finding of guilt.
o Inappropriate for accused persons who are foreign nationals not resident in Singapore.
 There are difficulties involved in the probation officer trying to supervise the accused
(Tan Choon Huat v PP)
 Upon completion, conviction ceases to be a conviction (s 11(1), POA)
o Probation is not a conviction if the conditions of probation such as time restriction etc. are
fulfilled and the probation order is successfully completed without commission of a new offence
o But for the purposes of sentencing, the Prosecution can still raise the fact of probation in its
address on sentenc

Specific sentencing options

Community-based sentencing
 Community-based sentencing: Part 17, CPC.
o 5 basic orders:
 Mandatory Treatment Order – s 340, CPC.
 Day Reporting Order – ss 341 – 343, CPC.
 Community Work Order – ss 344 – 345, CPC.
 Community Service Order – ss 346 – 347, CPC.
 Short-Detention Order (to “experience” life in prison) – s 348, CPC

CPC Type Description

Provision
S 339 Mandatory Courts can order an offender to undergo psychiatric treatment
Treatment for a maximum of 24 months in lieu of imprisonment.
Order
(MTO) The psychiatric condition must be treatable and must be a
contributing factor in the commission of the offence.

S 341 Day Courts can require an offender to report to a reporting centre

Reporting on a regular basis and to undergo counseling and rehabilitation.
Order (DRO) An offender may be electronically tagged if necessary.

DROs are intended to instill a sense of discipline on offenders

through close supervision.

S 344 Community This is modeled after the Corrective Work Order for those

90
 Work Order caught littering, but extends the scheme by allowing a wider
(COMWO) range of offences and types of work to be mandated.

The type of community work ordered is intended to possess

some nexus to the offence committed

S 346 Community Courts were previously empowered to make a community

Service Order service order under the Children and Young Persons Act or as a
(CSO) condition of probation.

This existing community sentence was expanded to allow adult

offenders (aged 16 and above) to make reparation to the
community while being punished for their misdeeds. This ties up
with Voluntary Welfare Organisations which are best able to put
the offenders service to good use.

S 348 Short This gives first time low-risk offenders a short detention period
Detention of up to two weeks. The SDO is less stigmatizing than
Order imprisonment and limiting the detention period will prevent
(SDO) first time offenders from being influenced by hardcore criminals.

More importantly, the SDO will not require the offender be

dislodged from his family and job.

 s 337(1), CPC: Situations where community-based sentence CANNOT be issued:

o (a) Sentence fixed by law.
o (b) Carries specified/mandatory minimum sentence
o (c) Specified in 3rd Schedule of Registration of Criminals Act (offences for which criminal record
cannot be spent)
o (d) Where accused was previously imprisoned.
o (e) Where accused was previous sentenced to reformative training, corrective training, or
preventive detention.
o (f) Accused previously been detained/ subject to police supervision under s 30 of CLTPA
o (g) Wwhere accused previously admitted to approved institution under s 34 of MDA or to an
approved center under s 17 of Intoxicating Substances Act
o (h) Where offence only attracts pecuniary penalties
o (i) Where offence is a serious one – punishable with > 3 years imprisonment.

Reformative training
 Reformative training – in a reformative training centre.
o s 305(1), CPC: Can be ordered by all levels of court.
 Can be ordered for male and female offenders between 16 years old and 21 years old
 Imprisonment may be appropriate if offence was particularly heinous or the offender has a long history
of offending (PP v Mohammad Al-Ansari bin Basrs)
o Court must ask itself whether rehabilitation can remain a predominant consideration.

91
 o If offence was particularly heinous or the offender has a long history of offending, then reform
and rehabilitation may not even be possible or relevant, notwithstanding offender’s youth
 s 305(3), CPC: Court must consider physical and mental suitability based on report by Director of Prisons.
 Reformative Training vs. Probation for Young Offenders
o Question of the extent to which the deterrence principle should apply and to what extent
remaining within society would facilitate rehabilitation or otherwise
o In practice: Unless the offences are clearly so serious such that probation cannot be
contemplated, Courts tend to call for both a probation and RTC report to guide its sentencing

Corrective training
 Corrective training – a lesser form of preventive detention.
o s 304(1), CPC: Can only be ordered by the District Court and High Court.
o 5 years minimum  14 years maximum.
o Additional mandatory orders (e.g. caning, or DQ) must be made if prescribed for the offence.
o No arbitrary upper age limit.
 But CT is likely to succeed in the case of a relatively youthful offender after his
discharge to make use of the skills acquired in corrective training
o Single sentence of correct training.
o ‘Mixed’ charges – MAC / DAC: unnecessary to impose a separate sentence for MAC charges
o Meant for offenders who show no capacity for reform despite previous incarceration.
 PP v Wong Wing Hung: Main aim is to reform the offender by instilling in him a sense of
discipline and by teaching him useful work skills.
 No requirement that must be shown to be ‘menace to society’ before CT can be
imposed
o Principal aim
 To turn an offender away from the easy allure of crime by putting him through a regime
of discipline and by providing him with certain work skills (Kua Hoon Chua vs PP)
o s 304(3): Court must consider physical and mental suitability based on report by Director of
Prisons.

Preventive detention.
 s 304(2), CPC: Can only be ordered by the District Court and High Court.
o Can be ordered for male and female offenders above 30 years old.
 7 years minimum  20 years maximum.
 Additional mandatory orders (e.g. caning, or DQ) must be made if prescribed for the offence.
 Single sentence of preventive detention
 Consecutive preventive detention sentences may be ordered.
o Nicholas Kenneth vs PP: Sentence would have to commence from the date sentence was passed
(but can be made to run consecutively)
 This is meant for protection of the public against “high risk”, “too recalcitrant” “habitual offenders” who
arere “beyond redemption”.
o Tan Ngin Hai v PP: Real test is whether the degree of propensity towards any type of criminal
activity is such that the offender ought to be taken out of circulation altogether so that he will
not be afforded even the slightest opportunity to give sway to his criminal tendencies.
o It is not intended to be calibrated to the present offence – normal limitations on sentencing do
not apply for preventive detention.
 Tan Ngin Hai v PP: Accused (with a record of 15 convictions) was sentenced to 8 years
preventive detention upon being convicted of theft of $1.10 from a van.
 Offender’s physical and mental suitability – PD reports are mandatory under present CPC regime

92
Disqualification from Driving (DQ)
 Relates to motoring/motor insurance offences and theft of motor vehicles/component parts.
 May be discretionary or mandatory.
o Mandatory DQ must be ordered alongside reformative training, corrective training and
preventive detention if prescribed for the offence, not for probation
 Depending on legislation, disqualification may commence from date of conviction or expiry of
imprisonment.
 s 3(3), Motor Vehicle Act: “Special reasons” not to order disqualification.
o “Special reasons” must relate to the circumstances of the offence, and not personal
circumstances.
 A mitigating or extenuating circumstance, not amounting in law to a defence to the
charge, yet directly connected with the commission of the offence, which the court
ought properly to take into consideration when imposing punishment (Siti Hajar bte
Abdullah v PP)
o Onus is on the offender to raise “special reasons” (Chue Woon Wai v PP).
 Irrespective of whether the Court is dealing with mandatory or discretionary
disqualification
 If offender chooses to say nothing in mitigation he does so ‘in exercise of his own better
judgment’
 When should disqualification commence in the event of imprisonment?
o Where both sentences of disqualification and imprisonment is imposed, disqualification should
generally only commence at the end of the period of imprisonment as the individual would no
opportunity to drive in any event during imprisonment (Muhammad Saiful bin Ismail v PP)
 PP v Mohammad Rohaizad bin Rosni
o Each period of disqualification, regardless of how many periods in total there were and for how
long each of these periods was, had to start from ‘the date of [the offender’s] release from
imprisonment’. There was no scope for arguing that multiple disqualification terms could be
consecutive, because those terms which started later would not be from the date of release of
the offender’s incarceration.

Prosecution & Defence Costs

 Fixed costs against accused – s 355(1), CPC: If accused is convicted and defence was conducted in an
“extravagant and unnecessary” manner
o Liable only for the part of prosecution costs which accused caused prosecution to incur by
reason of extravagant or unnecessary conduct of defence
o Not all costs ordinarily incurred to secure a conviction
o Even if the Prosecution has a strong case, accused has a right to claim trial and put the
Prosecution to strict proof of his guilt
o Jasbir Kaur v Mukhtiar Singh
 Court is entitled to take all the circumstances into account, including
 Strength of the case against the accused,
 His knowledge of this and
 His conduct of his defense
 An accused person should not be made to bear the costs of prosecution simply because
he chooses to claim trial even though the prosecution’s case is strong. The law does not
compel an accused person to plead guilty just because he has a weak case. It would not
be right to “penalise” the accused person with costs simply because he chooses to
claim trial and not plead guilty, even if the case is strong”

93
  Costs against Defence Counsel – s 357(1), CPCL: if court is satisfied that costs have been incurred
unreasonably or improperly in proceedings or have been wasted by a failure to conduct proceedings
with reasonable competence and expedition, the court may make an order—
o Disallowing the costs as between the advocate and his client
o Directing advocate to repay his client costs which client has been ordered to pay to any
person.
o S 357(2): The advocate will be given reasonable opportunity to appear before court and show
cause as to why the order should not be made.
 Taxed costs against Prosecution – s 355(2) for State courts and s 365(2): If accused is acquitted and
prosecution was “frivolous or vexatious
o Any costs to be paid out of the Consolidated Fund and PP not to be personally liable for costs: s
358, CPC
 S 357, CPC: Payment of costs by advocate to Prosecution (albeit indirectly) – Arun Kaliamurthy v PP

Compensation
 Against accused – s 359(1), CPC: Court shall consider whether or not to order a convicted person to pay
compensation to the person injured/his representative in respect of his person, character, or property.
o s 359(2), CPC: If the court thinks it is appropriate, then it must do so.
 Where injury is easily quantifiable – e.g. assault cases, etc.
 PP v AOB (2011)
o E.g. where offender has caused the victim physical injury in respect of
which the victim would be entitled to claim damages in a civil action.
o Compensation orders particularly suitable and appropriate for victims
who may have no financial means or have other difficulties in
commencing civil proceedings for damages against the offender.
 Note that compensation order is not part of the sentence nor an alternative to
sentence  should not be punitive (PP v Donohue Enilia)
o S 359(4), CPC: Compensation order does not affect the victim’s right to a civil remedy.
 Against Prosecution/ Complainant: s 359(4), CPC –If an accused is acquitted, and if it is proved to court’s
satisfaction that the prosecution was frivolous or vexatious, Court may order the prosecution/
complainant to pay as compensation to the accused a max sum of $10K.
 Compensation orders are appealable (an order of the trial court) (s 374(3), (4) CPC 2012)

Principles governing quantum of compensation

 PP v Donohue Enilia
o Amount “must not be oppressive, but must be realistic in that the court must be satisfied that
the accused has either the means available, or will have the means, to pay the compensation
within a reasonable time”.
 Soh Meiyun v PP
o Compensation takes precedence since the State’s interest in punishment is typically equally
satisfied whether the fine is paid or an imprisonment term in default is served
 s 360, CPC 2010 gives the court wide powers to give effect to a compensation order.
 Extension of time for payment.
 Direct payment to be made by instalments

(12) POST-TRIAL MATTERS

Applicable statutory framework

94
  On or after 02/01/2011, it is governed by Part XX, CPC 2010.
 With the CPC 2010, the “procedural aspects pertaining to all criminal appeals, criminal revisions, points
reserved, and criminal motions in the High Court and the Court of Appeal are now regulated under the
auspices of a single piece of legislation.

Appeals

Types of appeals
 Judgment/sentence/order by the DC/MC in any criminal case can be appealed  to the High Court.
o Ordinarily heard by a single judge, but under s 386(1), CPC, the Chief Justice can direct hearing
before 3 or more uneven number of judges.
 Judgment/sentence/order by HC in exercise of its original criminal jurisdiction can be appealed  to
Court of Appeal.
o Criminal jurisdiction of the High Court.
 s 9(3)(a), CPC: For offences under the Penal Code, any offence listed to be triable in a
High Court in the 7th Column of the First Schedule, CPC 2010.
 s 9(3)(b), CPC: For offences under other laws, if specifically empowered to try under the
law.
o Ordinarily heard by 3 Judges of Appeal, but under s 386(2), CPC, the Chief Justice can direct
hearing before 5 or more uneven number of judges.
 s 386(3), CPC: Appeals before 3 or more judges must be decided on majority.

When can an appeal be made?

 s 374(1), CPC: Appeal may be made for any judgment/sentence/order.
o Judgment – decision on conviction or acquittal.
o Sentence – e.g. sentence of death, imprisonment, fine, caning, etc.
o Order – one that finally disposes the rights of the parties, i.e. must be final, because judgments
and sentences are final,
 E.g. order disqualifying the accused from driving, compensation order, etc.
 Overriding requirement of FINALITY4 in the judgment, sentence, or order appealed
against to qualify for a right of appeal
 The test for determining the finality of an order being whether the judgment
or order disposes of the rights of the parties: Maleb bin Su v PP
 (X) Interlocutory ruling/order cannot be appealed against whilst trial is ongoing; should
be challenged during appeal of principal matter (PP v Hoo Chang Chwen)
 Order refusing stay in proceedings because it is not a final order (Knight Glenn
Jeyasingam v PP)
o Order that 2 accused be jointly tried
o Order that an accused’s statement be admitted into evidence,
o Ruling that there is a case to answer at end of Prosecution’s case

4
Does CA have jurisdiction to hear the merits of a secondary appeal where the first appeal had already been heard and
dismissed? Lim Choon Lye said no: since CA serves as a creature of statute, it would be functus officio and possess no
jurisdiction. This argument rests on the public interest in having finality of litigation. But Yong Vui Kong v PP: CA said the finality
principle should not be applied strictly in criminal cases where the life or liberty of the accused is at stake as it would subvert
the true value of the judicial process. In circumstances where there is sufficient material on which the court can say that there
has been a miscarriage of justice, this court should be able to correct such mistakes.

95
  Order made in any CCDC cannot be appealed against – s 374(5), CPC.
 Instead apply via s 404, CPC for a criminal revision of orders made by judicial
officers in the course of a CCDC

Who and when can file an appeal?

 Generally, under s 377, CPC any person in a criminal case or matter to which he is a party may appeal.
 s 377(1), CPC: Subject to sections 374, 375 and 377, Appeal may be made for any judgment/ sentence/
order if there are any
o Error in law /error in fact /in an appeal against sentence, on the ground that the sentence
imposed is manifestly excessive or manifestly inadequate.
 Accused: against conviction
o s 374(4): an accused person convicted by a trial court may appeal against his conviction,
sentence, and an order of the trial court.
o s 375: an accused person who PLEADS GUILTY may appeal against only the extent and legality
of the sentence imposed. He cannot appeal against his conviction
 However, he can appeal against sentence and the court may, under s 390(3) set aside
the conviction.
 PP: against acquittal
o Under s 374(3), CPC, the Public Prosecutor can appeal against the acquittal of an accused, the
sentence imposed on the accused, and an order of the trial court.
 Discretion to appeal lies wholly with the PP. Victims have no right of appeal if PP does
not wish to appeal. (Wong Boon Pow v PP)
 Victim’s family members have no right of appeal if the PP does not wish to appeal
(Huang Meizhe v AG)
 PRIVATE PROSECUTIONS: S 376(1) – Private person who instituted a prosecution has no right of appeal
against an acquittal or sentence imposed by a court.
o However, under s 376(2), CPC,
 PP can appeal vs. any judgement/sentence/order in a private prosecution, or
 PP can by fiat, and on such terms and conditions as he thinks fit, permit the private
person who instituted the prosecution to pursue such appeal.

96
Procedure for filing an appeal
 [1] File Notice of Appeal within 14 days from date of judgement/ sentence/ order 5
o s 377(2): To be lodged with the Registrar of the Supreme Court (if the trial court is the High
Court) or the Registrar of the State Courts (if the trial court is the Subordinate Courts) within 14
days from the date of the judgment, sentence or order.
 Timeline starts from the day after conviction/sentence is passed or made. Where the
“last day” falls on a Sunday or public holiday, then the next working day.
 Where conviction/sentence was passed or made on different dates, then separate
timeline for appeal against conviction and appeal against sentence – procedurally, they
are 2 separate appeals.
o s 377(3) requirements
 Must “state shortly substance of judgment, sentence or order appealed against”.
 Must contain address for service.
 Must be signed by the appellant or his/her counsel
 Unless given orally under s 381
 In the case of an appeal by PP, the Notice of Appeal must be signed by the PP
only (s 377(4))
o Standard form – Form 70, Criminal Procedure Code (Prescribed Forms) Regulations 2010.
s 377(5), CPC: After the notice of appeal has been lodged by an appellant who is an accused/complainant,
the Registrar of the Supreme Court (if trial court is HC) or the Registrar of the State Courts (if trial court is
a MC/DC) must, as soon as possible, serve on the appellant/ advocate at the address mentioned in the
notice of appeal, a notice that a copy each of the record of proceedings and the grounds of decision are
available and can be had on applying for the same.
 [2] File Petition of Appeal within 14 days after service of Record of Proceedings and GD
o s 378(1): To be lodged with the Registrar of the Supreme Court (if the trial court is the High
Court) or the Registrar of the State Courts (if the trial court is the State Courts) within 14 days
after service of the Record of Proceedings and the GD
o s 378(2) requirements:
 Must be signed by the appellant or his/her counsel.
 Must “state briefly substance of judgment, sentence or order appealed against and
must contain sufficient particulars of any points of law or of fact in respect of which the
appellant claims the trial court was in error”
 Standard form – Form 71, Criminal Procedure Code (Prescribed Forms) Regulations.
o s 378(6), CPC: “Except with leave court, appellant shall not be permitted to rely on any ground
of appeal other than those set out in the petition of appeal during appeal hearing”.

What if want to discontinue?

 Before Petition of Appeal is lodged
o s 378(4): Notice of Discontinuance can be filed before Petition of Appeal is lodged.
 Appellant must file the Notice of Discontinuance with Registrar of the Supreme Court (if
trial court is HC) or the Registrar of the State Courts (if trial court is State Courts). At the
same time, the appellant must also serve a copy of the same Notice of Discontinuance
to the other party/parties to the appeal
 After Petition of Appeal is lodged
o s 378(5), CPC: Even after Petition of Appeal has been filed, appellant can apply in writing for
leave of court to withdraw the appeal.
 Notice directed to the Registrar of the Supreme Court.
 Discretion to grant leave to withdraw appeal lies with the appellate court.

5
New CPC 2010 unified the procedures for all cases regardless of where cases are tried, thus on or after 2/1/2011

97
Non-compliance with timeline
 S 378(3): Appeal will be treated as withdrawn if petition is not filed within time prescribed, subject to s
380, CPC (interests of justice)
 s 380(1): However, appellate court may, on the application of any person debarred from appealing for
non-compliance with any provision of this Code, permit him to appeal if it considers it to be in the
interests of justice, subject to such terms and conditions as the court thinks fit.
o Predecessor sections (viz, s 250, old CPC and s 50, SCJA) had, however, used the term
“substantial justice,” is there a difference?
o What is “interest of justice”?
 Lim Hong Kheng v PP: Court considered the term “substantial justice” (in the
predecessor section), and held that in considering whether to allow an extension of
time for an appeal to be filed, it will examine the following factors:
 Length of the delay.
 Sufficiency of the explanation given for the delay.
 Prospects in the appeal.
 Factors are not to be evaluated in a mechanistic way, or as though they were
or equal or particular importance relative to one another in every case. Also
not expected that each of these factors would be considered in exactly the
same manner in all cases”
o Lim Hong Kheng v PP:
 Applicant filed her notice of appeal against a conviction within prescribed time.
 Her solicitors at the time received certified copies of the notes of evidence and the GD
from the Registrar of the Subordinate Courts on 12 April 2006.
 However, docs were sent to the applicant a number of days later – 21 April 2006.
 During this time, the applicant had decided to engage new solicitors. The new solicitors
attempted to file a petition of appeal on 24 April 2006. The petition was rejected as the
applicant had failed to file the petition within the statutorily prescribed period (i.e.
within ten days of receiving the grounds of decision).
 The applicant brought a motion seeking an extension of time to file her petition,
through an exercise of the court's discretionary power to order accordingly under s 250
CPC (1985 Rev Ed)
Held, granting the motion
 The discretion in s 250 was not limited by a consideration of whether the applicant had
the benefit of a presumption of innocence operating in her favour at the time of the
application. There was no reason for the court to take a less tolerant view of the
application because the applicant had been convicted
 There was no hard and fast rule that the default of one's solicitors could or could not
afford a basis for an extension of time. In each case, a matter for the court's discretion
having regard to all the circumstances of the case
 Generally, where delay was minimal or a compelling explanation existed for the delay,
court could subject the prospects in the appeal to less scrutiny than in cases of
inordinate delay / no justified reason existed to account for the delay
 The applicant's motion was allowed as:
 (a) The delay had been minimal as the applicant had attempted to file the
petition one working day out of time;
 (b) The applicant had adequately explained the reasons for the delay;
 (c) The applicant had only been informed of the communication from the
Subordinate Courts five days after her solicitors had received it, and only
received the grounds of decision on the penultimate day of the period within
which the petition was to be filed;

98
  (d) Confusion had arisen in relation to the applicant's deadline for filing the
petition, due to a related appeal being pursued by the applicant's son which
had a slightly different time frame; and
 (e) Applicant had shown that her appeal was not hopeless /bound to fail

Summary rejection of an appeal

 s 384(1), CPC: Appellate court may reject the appeal without setting it down for hearing where
(conjunctive):
o [1] Grounds of appeal do not raise any question of law; and
o [2] It appears to appellate court that the evidence is sufficient to support the conviction; and
o [3] There is no material in the circumstances in the case that
 Raises a reasonable doubt whether the conviction was right / lead the court to
consider that the sentence ought to be reduced.
 s 384(2), CPC: Where appellate court comprises of more than 1 judge, summary rejection of the appeal
must be unanimous.
o If there is no unanimous decision, the matter must be heard by the court
 s 384(4), CPC: Where appeal is summarily rejected, appellant may apply for leave to amend the grounds
of appeal within 14 days to restore the appeal for hearing.
o Appellant must amend grounds of appeal to raise a question of law, accompanied by a
certificate signed by counsel specifying question to be raised and an undertaking to argue it.
o Chief Justice (in the case where the appeal is made to the CA) or any High Court Judge (in the
case where the appeal is made to the HC) may grant leave to amend the grounds of appeal and
restore the appeal for hearing
If the appellate court does not summarily reject an appeal, it must issue a notice to the appellant and respondent
stating the time and place of the appeal (s 385, CPC)

Procedure during an appeal

 Part VIII, Supreme Court Practice Directions.
o Skeletal arguments for criminal matters before the HC or CA must be filed and served 10 days
before the hearing.
 Procedure during appeal is set out in s 387(1), CPC.
o Appellant or his/her counsel’s address.
o Respondent or his/her counsel’s address.
o Appellant or his/her counsel’s right of reply.
 NON-APPEARANCE of APPELLANT-ACCUSED
o s 387(2): Appellant is in custody: appellate court may consider appellant’s appeal and make such
order as it thinks fit.
o s 387(3): Appellant is not in custody (e.g. on bail) –appellate court may DISMISS appeal.
 2 broad categories in which an appeal may be dismissed under s 387(3), CPC 2010.
Different consequences will flow depending on which category a particular appeal falls
under (Leong Yew Thong v PP)
 1. Where the appellant does not appeal, and no one able to apprise court as to
appellant’s whereabouts and reason(s) for the appellant’s absence
o In the absence of any information on the appellant’s whereabouts,
court is invariably bound to dismiss appeal (though it is open for the
appellant to reinstate the proceedings per s 387(3), CPC)
 2. Where the absentee-appellant informs the court – invariably through
his/her counsel – as to the reasons for his absence

99
 o Whether appeal ought to be dismissed is a fact-sensitive inquiry
governed by two countervailing policy considerations.
 (a) Appeals are pursued expeditiously, and that no one is
allowed to defer indefinitely execution of justice –delaying
an appeal may be a prelude to absconding
 (b) Fairness to appellant–appellant may not be responsible
for his absence, and it would not be right to deprive him of
the opportunity to have justice done because of occurrences
outside his control
 s 387(3): COURT MAY REINSTATE APPEAL if appellant “subsequently appears before
the court and satisfies the court that his non-appearance was not due to his fault”

 Non-appearance of the RESPONDENT-ACCUSED at the hearing of the appeal

o Notice not duly served – cannot hear
 s 388(1): If appellate court is not satisfied that notice under s385 has been duly served,
the court must not make any order adverse to or to the prejudice of the respondent,
but must adjourn the hearing to a future day and direct the Registrar of the Supreme
Court to serve the notice on the respondent for him to appear.
o Notice duly served/ cannot be served –may hear
 s 388(2): If the notice cannot be served on the respondent/ if the court is satisfied that
the notice has been duly served on the respondent, and he is absent at the hearing of
the appeal, the court may hear the appeal in his absence.

Powers of the appellate court

 ADMITTING FRESH EVIDENCE: Application is by way of criminal motion: s 406, CPC
o Generally, an appeal will be considered based on evidence on record ie, evidence led at the
proceedings below
o However, under s 392(1), CPC, appellate court may “if it thinks additional evidence is necessary,
either take such evidence itself, or direct it to be taken by the trial court”.
o FACTORS guiding judicial discretion to admitting fresh evidence.
Juma’at bin Samad v PP, applying the principles stated in Ladd v Marshall
 [1] Non-availability – must be shown that the evidence could not have been obtained
with reasonable diligence for use at the trial below.
 [2] Relevance/materiality – evidence must (if given) would have an important influence
on the result of the case (but no need to be decisive).
 [3] Credibility – evidence must be credible.
 Need to balance two countervailing considerations: (1) Ensuring no miscarriage of
justice is occasioned; and (2) Need for finality in proceedings
 Circumstances in which an application to introduce fresh evidence will be allowed are
extremely limited –only in the most exceptional of circumstances that the court will be
willing to listen to additional evidence
o Mohammad Zam bin Abdul Rashid v PP: Test in Ladd v Marshall designed to apply in a civil
setting where the standard of proof is lower
 Non-availability is less important in criminal cases.
 What is paramount is the question of the relevancy/ materiality, and credibility, of the
further evidence to be adduced
 Test of “materiality and credibility” applied in Fricker Oliver v PP (2011)
 APPEAL AGAINST ACQUITTAL – s 390(1)(a), CPC.
o (i) Reverse order of acquittal and direct that:

100
  Further inquiry be made; or
 Accused be retried; or
 Remit the matter, with the opinion of the appellate court, to the trial court.
o (iii) Find the appellant guilty and pass sentence.
 However, see also PP v Chong Kai Xiong (2009) where the appellate court reversed the
order of acquittal, but (instead of finding the appellant guilty and passing sentence),
sent the case back to the trial court to record the conviction, hear the mitigation, and
sentence the accused.
 APPEAL AGAINST CONVICTION – s 390(1)(b), CPC.
o (i) Reverse finding and sentence and acquit/ discharge the accused; or
o Order accused to be retried by a court of competent jurisdiction;
o Remit the matter, with the opinion of the appellate court, to the trial court.
o Ng Chee Tiong Tony v PP: Principles to consider when deciding whether to order for retrial or
acquit an accused where it considers that there are sufficient grounds for interfering with the
conviction of the accused:
 Gravity of the charge and the facts;
 Likelihood of a successful prosecution in a retrial; and
 Prejudice suffered by the accused if retrial ordered.
o (ii) Alter the finding and maintaining the sentence – e.g. convicting on an amended charge.
 Loo Weng Fatt v PP: prejudice will not arise if substitution of the conviction under one
offence for a conviction under another will not affect the substance of the evidence
given in the proceedings below, and if the defence advanced in the trial below would
be a complete answer to the offence as substituted.
o (iii) With or without reducing or enhancing the sentence, and with or without altering the
finding, alter the nature of the sentence;
 Appeal against acquittal/ conviction /other conviction: court may FRAME AN ALTERED CHARGE (whether
or not it attracts a higher punishment) if satisfied that, based on the records before the court, there is
sufficient evidence to constitute a case which the accused has to answer: s 390(4), CPC
o Garmaz s/o Pakhar v PP: Overriding consideration was whether any error/omission in framing
the charge caused appellants to be prejudiced or misled –In this case they were not.
o Loo Weng Fatt v PP
 Courts substituted conviction under s 34 of cheating with abetment by conspiracy
 No prejudice caused to accused
 The substitution of the conviction would not cause any prejudice to the
appellant as the substitution did not affect the substance of the evidence given
in the proceedings below
 Furthermore, if the appellant's defence had been believed and accepted, it
would have been a complete answer to the substituted offence of abetment
by conspiracy as well.
o PROCEDURE
 s 390(6): after the appellate court has framed an altered charge, it must ask the
appellant/accused if he intends to offer a defence
 s 390(7),: if the appellant/accused intends to offer a defence to the altered charge, the
appellate court can do one of two things
 Order appellant/accused to be tried by a court of competent jurisdiction; or
 Hear submissions of law and fact from parties, and convict appellant/ accused
of the altered charge (if it is satisfied, based on its findings on these
submissions, the records before the court, and after hearing submissions from
the appellant/accused, that there is evidence to do so)
 s 390(8): if the appellant/accused does not intend to offer a defence to the altered
charge, the appellate court may

101
  Convict him on the altered charge if it is satisfied, based on the records before
the court, that there is sufficient evidence to do so
 If not satisfied that there is sufficient evidence on the record to convict the
appellant/accused on the altered charge, it must order the appellant/accused
to be tried by a court of competent jurisdiction
 However, for both s 390(7) and (8): if altered charge that carries death penalty, the
appellate court must order accused to be tried by a court of competent jurisdiction on
the altered charge
 Appeal against sentence – s 390(1)(c), CPC.
o Reduce or enhance the sentence.
 Court empowered to enhance sentence even where the accused has lodged an appeal
against sentence and the Prosecution has not lodged any such appeal
 Where an accused had got off with a relatively light sentence, and appeals
against sentence, the accused can expect an increase in his sentence (Choo Pit
Hong Peter v PP)
 Where the appellant makes salacious /vexatious allegations in appellate
proceedings which are found to be untrue/fabricated, the court is empowered
to enhance the appellant’s sentence notwithstanding the absence of an appeal
against sentence by PP (Thong Sing Hock v PP)
o Alter the nature of the sentence
o Set aside the conviction – s 390(3)(a), CPC 2010.
 (3) Notwithstanding s375, where an accused has PLEADED GUILTY and been convicted on such plea, the
appellate court may, upon hearing, in accordance with s387, any appeal against the sentence imposed
upon the accused —
o (a) Set aside the conviction;
o (b) Make such order in the matter as it may think just; and
o (c) By such order exercise any power which the trial court might have exercised.
 Appeal against any other order – s 390(1)(d), CPC
o Alter or reverse the order.
 Refusal to grant a compensation order can be appealed against even though it was
technically not an appeal from any other order (PP v Donohue Enilia)

Threshold for appellate intervention

 s 394, CPC: Grounds for reversal by appellate court.
o When court is satisfied that the judgment/sentence/order is
 Wrong in law or
 Against the weight of evidence, or
 Sentence was manifestly excessive/ inadequate in the circumstance of the case.
 Appeals against convictions/acquittals.
o Appellate court has a limited power of review over a trial judge’s findings of fact: PP v Wang Ziyi
Able
 Should exercise great caution and be slow to overturn them (especially where they
hinge on the trial judge’s assessment of the credibility and veracity of the witnesses),
unless they can be shown to be plainly wrong or against the weight of the evidence.
o But, in relation to inferences of fact to be drawn from the actual findings of fact, an appellate
court is as competent as any trial court to draw any necessary inferences of fact from the
circumstances of the case: Jagatheesan s/o Krishnasamy v PP
 Intervention by the appellate court is justified when the inferences drawn by the trial
court are not supported by the primary or objective evidence on record

102
  Appeals against sentence.
o Appellate court may only interfere with a sentence if it is satisfied (PP v Kwong Kok Hing):
 Trial court has made a wrong decision as to the proper factual matrix for sentence.
 Trial court has erred in appreciating the material before him.
 Sentence was wrong in principle and/or law.
 Sentence imposed was manifestly excessive or manifestly inadequate.
 It is “manifestly” excessive/inadequate if it requires “substantial alterations as
opposed to minor corrections to remedy the injustice (PP v UI (2008)).
o PP v Mohammed Liton Mohammed Syeed Mallik (2007)
 Because the sentencing process is highly discretionary, appellate intervention should be
tempered with a certain degree of deference to the sentencing judge.

S 393, CPC: Effect of death of appellant

Points reserved

Power of trial court to state case on any question of law

 s 395(1): A trial court hearing any criminal case, may on the application of any party or on its own
motion, state a case to the relevant court on any question of law.
 s 395(2), CPC: When can a case be referred?6
o [1] Question of law relating to the interpretation or effect of any provision in the Constitution.
 At any stage of the proceedings after the question of law arises.
 s 395(8): Stay of the proceedings vis-à-vis the constitutional issues.
 s 395(3): Set out question as far as possible, in a form that affords an affirmative or
negative answer.
o [2] Any other question of law.
 Within 10 days from the time of the making or passing of the judgment, sentence or
order by the trial court – i.e. can only be referred at the conclusio
 Applies to both applications made by a party and motions by trial court
 s 395(3): Trial court must briefly set out the facts it considers proved and the question
of law to be reserved for the opinion of the relevant court.
o Standard form – Form 72, CPC (Prescribed Forms) Regulations 2010.
o Questions of fact may not be raised in a case stated (R v Yeomans)
 S 395(4): Trial court may refuse to state a case upon any application if it considers the application
frivolous or without any merit, but it must state a case if the application is made by the PP

6
Azman bin Jamaludin v PP for differences between appeals and points reserved.
 ‘Order’ refers to a final order
 Although there is a conceptual diff btw appealing against a judgment/sentence/order and referring a question of law arising from
the same, the policy considerations against allowing appeals against interlocutory orders apply equally to references on points of
law in connection with interlocutory orders.
o If the position were otherwise (i.e., if s 395 applicable to interlocutory orders, it would invite innumerable references,
resulting in disrupted criminal trials and unacceptable delays in their final disposal.
 A broad interpretation of s 395 provide a backdoor for appealing against interlocutory orders by the alternative avenue of referring
questions of law to the High Court for its determination.
 Further, even if DJ’s Order has prejudiced Applicant, resulting in his conviction, he can appeal against his conviction on the ground
that evidence was wrongly admitted. A conviction caused by the wrongful admission of evidence may be set aside on appeal under
s 396 of the CPC (corresponding to s 423 of CPC 2010) if it has occasioned a failure of justice. As such, the Applicant is not left
without a remedy if the DJ’s Order is not reversed at this stage of the proceedings.

103
s 396(1): Stating a case directly to Court of Appeal – “leapfrogging” procedure.
 Points of law reserved in a case tried in State Courts ordinarily referred to High Court under s 395, CPC.
 However, s 396 provides for a “leapfrogging procedure” for any party to the proceedings before a State
Court to apply to state a case directly to CA from the State Court.
o Leave of CA is required (s 396(2), CPC).
o Highlighted by the Minister at the Second Reading of the CPC 2010 Amendment Bill that the
“leapfrogging” procedure will apply where:
 HC is already bound by a prior decision of CA on the point of law being stated; or
 Conflict of binding authority on the HC on the question at hand
 When can a case be referred?
o See s 396(4), CPC read with s 395(2), CPC– i.e. similar timelines.

S 397, CPC: CRIMINAL REFERENCE to Court of Appeal

 For criminal cases heard in the State Courts, court of final appeal is the High Court. However,
“questions of law of public interest” may be referred to the CA
 s 397: When a criminal matter has been determined by HC in the exercise of its appellate /revisionary
jurisdiction, and a party to the proceedings wishes to refer any QUESTION OF LAW OF PUBLIC INTEREST
which has arisen in the matter and the determination of which by the Judge has affected the case, that
party may apply to the CA for leave to refer the question to the CA.
o What is a question of law of public interest?
 Tee Kok Boon v PP: Question of law of public interest is one the determination of which
would have a general application to all future cases in which the same point might
arise.
 s 397(6), CPC: Any question of law which any party applies to be referred regarding
which there is a conflict of judicial authority shall be deemed to be a “question of law of
public interest”.
 Reference procedure should not be utilised to amount to backdoor appeal (MV Balakrishnan v PP)

Procedure –Leave of Court of Appeal required

 s 397(1), CPC: LEAVE of Court of Appeal required
o s 397(2), CPC: But Public Prosecutor can refer without leave.
 PP’s determination that a question of public interest has arisen can no longer be
queried by the court (Bachoo Mohan Singh v PP)
o s 397(4), CPC: Court of Appeal may reframe the “question(s) of law of public interest” to reflect
the relevant issue.
o Application must be lodged within 1 month.
 Bachoo Mohan Singh v PP (2010)
o HELD: 4 conditions to be satisfied before the Court of Appeal will grant leave to reserve any
question of law of public interest to the Court of Appeal.
 [1] There must be a question of law;
 [2] The question of law must be one of public interest and not of mere personal
importance to the parties alone;
 A novel question of law may not always satisfy the public interest threshold.
 Mere construction of words in statutory provisions in their applications to the
facts of a case would not satisfy the requirements of public interest.

104
  [3] The question must have arisen in the matter dealt with by High Court in the exercise
of its appellate or revisionary jurisdiction; and
 [4] The determination of the question by the High Court must have affected the
outcome of the case.
o Note: CA retains discretion not to grant leave, but there must be good reasons for the court to
decide not to refer if the 4 conditions are satisfied.
o Reference procedure should not to be used to refer questions to the CA which are settled or
novel points which can be decided by the application or extension of established principles of
law or the application of statutory provisions
 Wong Sin Yee v PP: offender’s application to reserve a question of law to the CA dismissed because issue
had previously been conclusively determined by the HC

Criminal revisions

Criminal revisions are part of High Court’s supervisory jurisdiction to correct miscarriages of justice.
 How the matter may be brought to HC’s attention: s 400(1), CPC –HC can call for and examine the
record of any criminal proceeding before any State Court to satisfy itself as to the correctness, legality or
propriety of any judgment/sentence/order recorded or passed and as to the regularity of those
proceedings:
o HC calls for record of proceedings by itself
o State Court applies
o PP petitions for revision
o Accused petitions for revision
 Standard form – Form 73, CPC (Prescribed Forms) Regulations 2010.
 Difference btw appeal and criminal revision?
o Appeal can be pursued as of right so long as requirements in s 394 satisfied (e.g. sentence
manifestly excessive)
o Criminal revision: only where there is serious injustice
 Cannot appeal but serious injustice e.g. sentences passed in excess of jurisdiction (e.g.
fine in excess of prescribed maximum), setting aside a plea of guilt, CCDC orders
 POWERS OF THE HIGH COURT ON REVISION
o S 401(1): On examining a record under revision in this Division, the HC may direct the lower
court to make further inquiry into a complaint which has been dismissed under s152 or into the
case of an accused who has been discharged. 7
o s 401(2): Exercise any powers (of appellate court) conferred by ss 383, 389, 390 and 392 8
 s 383, CPC: Stay of execution pending appeal by ordering bail.
 s 389, CPC: Arrest of respondent in certain cases.
 s 390, CPC: Decision on appeal.
 s 392, CPC: Taking additional evidence.

7
Unless the view taken by the lower court is palpably unreasonable or perverse, the High Court should not, when exercising its
revisionary powers, order further inquiry/ set aside an order of discharge on the same materials simply because it would be
inclined to take a different view of the evidence if it were hearing the matter afresh
8
Under s 401(2), CPC, the High Court may deliver a decision as if it were sitting in an appellate capacity (R v Syme & Co),
substitute a conviction under a different section: Gurdit Singh v PP (where, at the Prosecution’s request, the High Court
exercised its revisionary powers and substituted a conviction for a charge under s 380 of the Penal Code), set aside an acquittal
and order a re-trial – an order of retrial after setting aside an acquittal in revision would not amount to converting a finding of
acquittal into one of conviction: Re Pichi Muthu

105
 o s 401(3): May not proceed under subsection (1) or (2) without first giving the parties adversely
affected by the High Court so proceeding an opportunity of being heard either personally or by
advocate.
o s 401(4), CPC: Provision does not empower the High Court to convert an acquittal into a
conviction.

 WHEN can High Court’s revisionary jurisdiction be invoked?

o At any time – before trial, during trial, after trial, as appeal is ongoing, etc (ie, not only upon the
conclusion of proceedings before the State Courts)
 High Court’s discretion in revision is unfettered and ought fairly to be exercised
according to the exigencies of each case (Re Soo Leot)
 Because power to call for and examine the record of any criminal proceedings before
the State Courts is a power vested in the High Court, it is not dependent on the locus
standi of an applicant (Bright Impex v PP)
o Revisionary powers may also be exercised by High Court in hearing appeal against
conviction/sentence (i.e., without formally having been brought before the High Court by way of
an application for Criminal Revision)
o Note s 400(2), CPC: cannot call for record if decision could have been appealed against
 A Criminal Revision cannot be applied for in respect of any judgment, sentence or order
which could have been appealed against, UNLESS application for revision is
 Against a failure by a court to impose the mandatory minimum sentence or
any other sentence required by written law; or
 Against a sentence imposed by a court which court is not competent to
impose
 When will the High Court EXERCISE its revisionary powers?
o Revisionary powers must be exercised sparingly in exceptional circumstances, when failure to
exercise revisionary powers will result in “SERIOUS INJUSTICE” (Ang Poh Chuan v PP, Knight
Glenn Jeyasingam v PP)
 Instances where the High Court exercises its revisionary powers.
o PP v Koon Seng Construction
 Petitioner pleaded guilty to a wrong charge and was erroneously convicted on this
charge which attracted a heavier penalty
o Lee Eng Hock v PP
 A petition for criminal revision may be presented on the ground that the SOF did not
contain all the elements which constitute offence charged.
 However, it cannot be used as a “backdoor appeal” against conviction for accused
persons who had pleaded guilty to their charges.
o Chen Hock Heng Textile Printing v PP
 Offence with which he was charged not disclosed by the SOF
 But, where the SOF to which the petitioner pleaded guilty contains some inaccuracies,
but the petitioner is not prejudiced in any way, this does not ipso facto constitute
sufficient grounds for the HC to exercise its revisionary jurisdiction: Packir Malim v PP
 Accused who pleaded guilty?
o PP v Shaifudin
 Trite law that the fact that a petitioner pleaded guilty of his own accord is not a bar to
the exercise of the court’s revisionary power
 Fact that a plea of guilt has been entered only means that the accused loses his right to
appeal against his conviction
 An application by way of Criminal Revision is then the only means by which the accused
can have a wrongful conviction set aside

106
 o But, at the same time, the Criminal Revision is not a convenient form of “backdoor appeal”
against accused persons who have pleaded guilty to their charges: Teo Hee Heng v PP

 Power to revise orders made at Criminal Case Disclosure Conferences (s 404, CPC)
o Although orders pertaining to disclosure made at CCDC cannot be appealed against, they can be
subject to revision
o s 404(1): High Court on its own motion, or on the application of the PP/accused, in any CCDC,
may call for and examine record of any CCDC proceedings in the State Courts to “satisfy itself as
to the correctness, legality or propriety of any order recorded or passed at the CCDC, and as to
the regularity of the CCDC
o s 404(2): Application must be made within 7 days of the order.
o s 404(3): Affirm, vary or set aside any of the orders made presiding judge during the CCDC
o s 404(4): May not proceed to affirm, vary or set aside the order of the CCDC judge w/o first
giving party/parties adversely affected by the order of the HC an opportunity to be heard (either
personally or by his/her counsel)
o Standard form – Form 74, CPC (Prescribed Forms) Regulations 2010.

Criminal motions
 Can be to High Court of Court of Appeal
 Used to move the court for whatever other matter is not the subject of an appeal, revision or reference;
subject matter can be grounded in statute/ common law
 Instances of criminal motions.
o s 406, CPC: Common criminal motions, where application is made to the High Court to:
 Grant bail where State Courts has refused bail.
 Vary quantum/conditions of bail imposed by State Courts.
 Adduce fresh evidence at appeal (s 392)
 For extension of time to appeal (s 380)
 Quasing an order made by the State Courts.
 Procedure for criminal motions.
o s 406, CPC: Notice of motion.
 (1) No motion shall be made without previous notice to the other party to the
proceedings.
 (2) Unless the High Court gives leave to the contrary, there must be at least 7 clear days
between the service of the notice of a criminal motion and the day named in the notice
for hearing the motion.
o s 407, CPC: Form and issue of notice of motion
 (1) The notice of a criminal motion must be in the prescribed form.
 Standard forms – Forms 75 – 78, Criminal Procedure Code (Prescribed Forms)
Regulations 2010.
 (2) The notice of a criminal motion must be:
 (a) Supported by an affidavit setting out a concise statement of the facts, the
relief or remedy required and the reasons for the relief or remedy; and

13- Ancillary Proceedings

107
Costs in Criminal Proceedings

Introduction
 Governed by ss 355 – 358 and 361, CPC 2010.
 It is discretionary.
 It can be ordered against the accused, prosecution, or defence counsel.

Cost orders against accused persons

 s 355(1), CPC 2010: Where the accused is convicted of an offence and if the court is satisfied that
the defence was conducted in “an extravagant and unnecessary manner”, the court may order the
accused to pay a sum to be fixed by way of costs of his prosecution.
o s 358(1), CPC 2010: Costs awarded to and received by the prosecution shall be paid into the
Consolidated Fund.
 Factors that a court should consider:
o Strength of case against accused.
o Accused’s knowledge of this.
o Accused’s means.
 Note: Rarely utilised except where the accused intentionally delays proceedings or pursuits
unmeritorious arguments and make unfounded allegations.
o The accused is liable only for that part of prosecution costs which accused caused
prosecution to incur by reason of extravagant or unnecessary conduct of defence, not all
costs ordinarily incurred to secure conviction.
o Jasbir Kaur v Mukhtiar Singh (1999)
 HELD: This is because even if prosecution has a strong case, the accused has a right
to claim trial and put the prosecution to strict proof of his guilt.
 The law does not compel an accused to plead guilty just because he has a weak
case.

Cost orders against defence counsel

 Section 357(1), CPC 2010: Where it appears to a court that costs have been incurred unreasonably
or improperly in any proceedings or have been wasted by a failure to conduct proceedings with
reasonable competence and expedition, the court may make against any advocate whom it
considers responsible.
 Section 357(2), CPC 2010: Court must give the advocate and solicitor reasonable opportunity to
appear before the court and show cause.

Cost orders against the prosecution.

 s 355(2), CPC 2010: Where an accused is acquitted and if the court is satisfied that the prosecution
was “frivolous or vexatious”, the court may order the prosecution to pay full costs, charges and
expenses incurred by the accused in and for his defence.
o s 358(1), CPC 2010: Costs awarded against the prosecution shall be paid out of the
Consolidated Fund.
o s 358(2), CPC 2010: Public Prosecutor shall not be personally liable for any costs awarded
against him.
 Recovery of costs.
o s 361, CPC 2010: Any order for costs made shall be recoverable as a judgment debt.

108
Disposal of Property

Power to seize property

 s 35(1), CPC 2010: A police officer may seize, or prohibit the disposal of or dealing in, any property:
o (a) In respect of which an offence is suspected to have been committed;
o (b) Which is suspected to have been used or intended to be used to commit an offence; or
o (c) Which is suspected to constitute evidence of an offence.
 s 78, CPC 2010: Search of person arrested and his premises.
o (1) When making an arrest under s 78(1), CPC 2010, the police may search the person
arrested and place in safe custody all articles other than necessary wearing apparel found
upon him.
o (2) Police investigating an arrestable offence and who enter any place pursuant to s 78(2)
(a), CPC 2010 may search the place for any evidence of the offence.

Procedure governing seizure of property

 s 370, CPC 2010: In respect of property seized under ss 35 or 78, CPC 2010, or alleged or suspected
to have been stolen, or found under circumstances that lead him to suspect an offence, a report of
seizure must be made to a Magistrate’s Court at the earlier of the following times:
o (a) When police officer considers the property no longer relevant.
o (b) 1 year from date of seizure of property.
 Rationale for mandatory reporting of a seizure.
o Ensures safe custody of property once the Magistrate’s Court takes cognisance of seizure.
o Prevents such property from being wrongfully detained, used, appropriated or disposed of.
 Failure to report seizure altogether will deprive police of power to retain legal control and/or
custody of the seized property, except with the consent of the Magistrate’s Court.

Power of court to order disposal of property

 s 370(2), CPC 2010: Upon receipt of a report, the Magistrate’s Court must make such order as it
thinks fit:
o Respecting the delivery of the property to the person entitled to the possession of it; or
o If that person cannot be ascertained, respecting the custody and production of the
property.
 s 370(3), CPC 2010: Magistrate’s Court must not dispose of the property if there is any pending
court proceeding relating to the property, or it is satisfied that such property is relevant.
o s 371, CPC 2010 provides the procedure where person entitled to the property is known.
o s 372, CPC 2010 provides the procedure where person entitled to the property is unknown
or cannot be found.
 s 364(1),CPC 2010: During or at the conclusion of an inquiry/trial, the court may make an order as it
thinks fit for the disposal of any property produced before it.
 s 364(2), CPC 2010: During or at the conclusion of any criminal proceeding, the court may make an
order as it thinks fit for the disposal of any property:
o (a) In respect of which an offence is or was alleged to have been committed or which has
been used or is intended to have been used for the commission of any offence or which
constitutes evidence of an offence; and
o (b) Which is produced before the court or is in the court’s custody or the custody of a police
officer or any other person who has seized the property pursuant to any law.

109
Disposal orders
o s 364(2), CPC 2010: Court can make the following disposal orders.
 [1] Forfeiture.
 Mandatory forfeiture.
o E.g. s 123(2), Customs Act: An order for the forfeiture of goods shall be made if
it is proved to the satisfaction of the court that an offence under this Act has
been committed and that the goods were the subject matter of, or were used
in the commission of, the offence, notwithstanding that no person may have
been convicted of the offence.
 Discretionary forfeiture.
o s 364(2), CPC 2010 creates a general discretionary power of forfeiture – “the
court may make an order…”.
o Principles governing exercise of discretion to forfeit.
 Whether property is owned by offender and if not, the degree of
owner’s complicity – i.e. whether he connived, participated, or had
Nelsonian knowledge of commission of offence.
 Whether owner benefitted from commission of offence.
 Value of property and whether forfeiture is proportionate to gravity of
offence and maximum penalty prescribed.
 Need for general deterrence.
 Extent of use of property in commission of offence – i.e. whether
property is used once or several occasions.
 Whether claimant could reasonably have taken any preventive
measures.
 [2] Confiscation.
 [3] Destruction.
 [4] Delivery to any person.
o Disposal inquiry will be conducted if there are any competing claims.

Juvenile Proceedings

Definition of “child”, “young person”, “juvenile”, “youthful offender”

 Section 2, Children and Young Persons Act
o “child” means a person who is below the age of 14 years;
o “young person” means a person who is 14 years of age or above and below the age of 16
years.
o “juvenile” means a male or female person who is 7 years of age or above and below the age
of 16 years;
 Section 2, CPC 2010
o “juvenile” means a person who, in the absence of legal proof to the contrary, is 7 years of
age or above and below the age of 16 years in the opinion of the court;

Special provisions relating to youthful offenders

 Section 314, CPC 2010: A sentence of death must not be passed or recorded against an accused
convicted of an offence if the court has reason to believe that, at the time the offence was

110
 committed, he was below the age of 18 years, but instead the court must sentence him to life
imprisonment.
 Section 323, CPC 2010: If a juvenile is convicted of an offence punishable by fine or imprisonment or
both, and whether or not the law under which the juvenile is convicted provides that fine or
imprisonment or both shall be imposed, the court may, instead of sentencing him to fine or
imprisonment, deal with the juvenile in the manner provided by the Children and Young Persons Act
(Cap. 38).
 Section 328(6), CPC 2010: Juveniles—limited to 10 strokes of the cane
 For sentence of death, if the crime was committed before the person was 18, then the youth shall
be liable to be detained under such conditions as the President directs (PP v Anthony Ler & Anor
[2001] SGHC)

Governing consideration for young persons

 Section 28, CYPA: Welfare of the child or young person and shall, in a proper case, take steps for
removing him from undesirable surroundings, and for securing that proper provision is made for his
education and training.
 Section 28(2), CYPA:  A court shall not order a child below the age of 10 years to be sent to a
juvenile rehabilitation centre, a remand home or place of detention unless for any reason, including
the want of a fit person of his own religious persuasion who is willing to undertake the care of him,
the court is satisfied that he cannot suitably be dealt with otherwise.

Treatment during investigations

 Section 29, CYPA: Child or young person, while being detained, shall not associate with any adult
(not being a relative) who is charged with an offence not being the one that the child is being
charged with. (Child should not associate with adult offenders)
 Section 30, CYPA: Bail of children and young persons arrested
 Section 53, CYPA: Custody of children and young persons not released on bail – Minister to appoint
remand homes for the purposes of this act.
 Section 54, CYPA: Remand of or committal to custody in remand home

Trial of a child/ young person

 Section 32, CYPA: Constitution of Youth Court
o Judge must sit with 2 advisers nominated by President
 Section 33, CYPA: Jutrisdiction of Youth Court
 Section 35, CYPA: Restriction on the publication of information relating to proceedings involving
children and young persons
o Cannot publish information and picture—if not fine of $5,000 and $10,000 for subsequent
cases.

Finding guilt/ sentence

 Section 36, CYPA: Removal of disqualification or disability on conviction
 Section 37, CYPA: Restrictions on punishment of children and young persons
o Child cannot be sentenced to prison in default of payment of fine or costs
o Child cannot be sentenced to prison in default of damages, unless court certifies that he is
of so unruly a character that he cannot be detained in a place of detention or a juvenile
rehabilitation centre.
o No young person shall be sentenced to corporal punishment, only High Court can.

111
 Section 38, CYPA: Punishment of certain grave crimes
 Section 41, CYPA: Words “conviction” and “sentence” not to be used by Youth Court
 Previous conviction in juvenile proceedings and enhanced punishment
o PP v Mohamed Noor Indra bin Hamzah (2009)
 HELD: A juvenile conviction constitutes a 1st conviction for which a subsequent
conviction would attract enhanced punishment.
 Note: Sentence of probation is not equivalent to a 1st conviction.

112